Bordering on Legality: an Investigation Into the Lines' We'draw/The Lines That Draw'us'(And the Spaces in Between)

Bordering on Legality:

An investigation into the lines 'we' draw / the lines that draw 'us' (and the spaces in between)

Sean Rehaag

A thesis submitted in conformity with the requirements

for the degree of Doctor of Juridical Science

Faculty of Law

University of Toronto

395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada

Your file Votre reference ISBN: 978-0-494-44754-3 Our file Notre reference ISBN: 978-0-494-44754-3

NOTICE: AVIS: The author has granted a non L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats.

The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission.

In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these.

While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada ii Bordering on Legality: An investigation into the lines 'we' draw / the lines that draw 'us' (and the spaces in between)

Doctor of Juridical Science, 2008

Sean Rehaag

Faculty of Law University of Toronto

ABSTRACT

This dissertation examines how legal scholars can contribute to debates within liberalism about border control.

Many liberal theorists view border control as exceptional. Such theorists contend that standard liberal principles regulate relations among members of a political community. As such, these principles are not applicable with their full force to the border control context because this context raises the analytically prior question of who counts as a member of the community. Along similar lines, the legal systems in liberal states characterize border control law as legally exceptional. In this exceptional area of law, human rights norms - especially due process norms - are attenuated.

This dissertation challenges these exceptional understandings of border control by exposing the legal processes that render border control laws exceptional and by investigating legal strategies that migrants successfully deploy to resist exceptional border control laws.

The dissertation begins by exploring the exceptional understanding of border control adhered to by many liberal theorists. It then moves on to examine how border control law establishes legally anomalous zones and legally exceptional classes of people, both of which allow states to deploy legal forms as a one-way projection of power over non- citizens. Next, the dissertation offers a critique of laws operating in this manner, arguing that such laws fail to comply with norms that are constitutive of what Lon Fuller termed

in "legality". The dissertation then considers a legal strategy that migrants and their allies use to challenge legally exceptional border control measures: church sanctuary practices, whereby non-citizens take up residence in sacred buildings to avoid deportation. Faith- based communities frequently justify sanctuary as a means to correct particularly egregious outcomes emerging from border control procedures that violate principles of legality. Moreover, states commonly defer to these arguments by mitigating the harsh outcomes of border control law in cases where sanctuary has been offered. The dissertation concludes that greater attention ought to be paid by liberal theorists to legal arguments made within extra-state institutions such as faith-based communities that are responsive to the interests of non-citizens and that successfully resist - and develop alternatives to - legally exceptional border control activities.

IV ACKNOWLEDGEMENTS

When I embarked upon this dissertation, I mistakenly imagined that writing a dissertation was an individual and largely solitary endeavour. I quickly learned, however, that long- term academic projects of this kind develop only through interactive dialogues with countless people, both inside and outside the academy. Though I cannot hope to individually acknowledge here everyone who participated in these interactions, I am deeply grateful to all those who has taken the time to engage with this project.

I owe a special debt of gratitude to my Supervisor, Audrey Macklin, whose incisive feedback and kind support have proven invaluable over the past five years. Also, to David Dyzenhaus and Jennifer Nedelsky who, along with Audrey Macklin, served on my SJD Advisory Committee: your helpful comments have greatly improved both this dissertation and my academic skills more generally. In a similar vein, I am appreciative of the thoughtful engagement with my dissertation demonstrated by my Doctoral Examination Committee. I would like to thank, in particular, my External Appraiser, Boaventura de Sousa Santos. Also, I am grateful to Joseph Carens, Jutta Brunnee and Randall Hansen, who all agreed to participate in the Examination on short notice.

Throughout the past five years I benefited enormously from the opportunity to spend periods of time teaching, undertaking research and interacting with colleagues at several universities, including: Universite de Sherbrooke, Universite de Montreal, U.C. Hastings, York University, and the University of Victoria. I am also grateful to several research centres that hosted and assisted me in my research, including: the Consortium on Democratic Constitutionalism (University of Victoria), the Centre for Gender and Refugee Studies (U.C. Hastings), and the Canada Research Chair in International Migration Law (Universite de Montreal). My research has also benefited significantly from my opportunity to engage with various organizations outside the academy, including: the Canadian Council for Refugees, the African Canadian Civil Liberties Association, the International Gay and Lesbian Human Rights Commission, and the FCJ Refugee Centre.

v My graduate studies were made possible by the generous financial assistance I received from a number of sources, including: the Social Sciences and Humanities Research Council of Canada, the Ontario Graduate Scholarship Program, and the University of Toronto. I am grateful that these institutions saw fit to fund my studies.

Of course, one does not arrive in a doctoral program without the encouragement and assistance of many along the way. While I will not try to list all those who have had a significant impact on my academic development - and whose fingerprints are doubtless all over this dissertation - I would nonetheless be remiss if I did not single out one individual for special thanks: throughout my legal education Stephen Toope was, and remains, an invaluable mentor.

Finally, to my family, and especially my partner, Julie: thank you so much for all your encouragement and support.

VI PREVIOUSLY PUBLISHED MATERIALS

This thesis contains two adapted versions of previously published materials:

• Chapter I includes an adapted excerpt of S. Rehaag, "Review: The rights of others" (2006) 44 Osgoode Hall LJ. 395.1 am grateful to the Osgoode Hall Law Journal for permission to reprint the article.

• Appendixes A & B, as well as portions of Chapter III, are based on S. Rehaag, "Troubling Patterns in Canadian Refugee Adjudication" (2008) 39 Ottawa L. Rev 335.1 am grateful to the Ottawa Law Review for permission to reprint the article.

vn viii TABLE OF CONTENTS

CHAPTER I: INTRODUCTION 1 1.1. INTRODUCTION 1 1.2. AN OVERVIEW OF THE ARGUMENT 3 1.2.1. Chapter I: Liberalism & Border Control 4 1.2.2. Chapter II: The Legal Geography of Border Control 4 1.2.3. Chapter III: The Legal Pathologies of Border Control 5 1.2.4. Chapter IV: Resisting Exceptional Border Control Law 5 1.2.5. Chapter IV: Beyond Exceptional Understandings of Border Control 6 1.3. SETTING THE STAGE: LIBERALISM & BORDER CONTROL 7 1.3.1. The Two-Step of Liberal Philosophy 13 1.3.2. John Rawls: A (Bounded) Theory of Justice 17 1.3.3. Charles Beitz & Joseph Carens: Critiques of a (Bounded) Theory of Justice 26 1.3.4. Catherine Dauvergne: Amorality & (Bounded) Liberalism 30 1.3.5. Michael Walzer: (Bounded) Spheres of Justice 33 1.3.6. Seyla Benhabib: (Bounded) Democratic Iterations 43 1.4. CONCLUSION 53 CHAPTER II: THE LEGAL GEOGRAPHY OF BORDER CONTROL 59

2.1. INTRODUCTION 59 2.2. LEGAL GEOGRAPHY & BORDERS 61 2.3. DRAWING OUTSIDE THE LINES: NON-ENTREE STRATEGIES 74 2.3.1. Gaps in Protection: The 1951 Convention 85 2.3.2. Non-Entree Strategies: Direct Backs & Safe Third Countries 92 2.3.3. Non-Entree Strategies: Visa Requirements & Carrier Sanctions 95 2.3.4. Non-Entree Strategies: Enforcing Visa Requirements & Carrier Sanctions 101 2.3.5. Non-Entree Strategies: Interception 102 2.3.6. Non-Entree Strategies: Interdiction 107 2.4. REDRAWING THE LINES: PARTIAL EXCISION & OTHER LEGAL FICTIONS 112 2.4.1. The MV Tampa Incident: The Facts 112 2.4.2. The MV Tampa Incident: Federal Court (North J) 116 2.4.3. The MV Tampa Incident: Federal Court of Appeal 122 2.4.4. The MV Tampa Incident: Federal Court of Appeal (Beaumont J) 123 2.4.5. The MV Tampa Incident: Federal Court of Appeal (French J) 124 2.4.6. The MV Tampa Incident: Federal Court of Appeal (Black CJ, Dissenting) 127 2.4.7. The MV Tampa Incident: The Pacific Solution & the High Court of Australia 129 2.4.8. Other Legal Fictions 144 2.5. CONCLUSION 147 CHAPTER III: THE LEGAL PATHOLOGIES OF BORDER CONTROL 151 3.1. INTRODUCTION 151 3.2. LON FULLER'S INTERACTIONAL CONCEPTION OF LAW 152 3.2.1. Hapless King Rex & the Inner Morality of Law 153 3.2.2. Critics of the Inner Morality of Law 154 3.2.3. Responding to Critics: A Horticultural Hypothesis 156 3.2.4. The Principles of Legality & the Capacity for Self-Direction 158

IX 3.2.5. The Principles of Legality & Interacting with Reference to Rules 162 3.2.6. Interactional Law & Strains on Legality 173 3.3. STRAINS ON LEGALITY IN CONTEMPORARY BORDER CONTROL 175 3.3.1. The Existence of Rules 175 3.3.2. Promulgation 181 3.3.3. Non-Retroactivity 182 3.3.4. Clarity 183 3.3.5. Non-Contradiction 183 3.3.6. Possibility of Compliance 184 3.3.7. Infrequent Changes 185 3.3.8. Administered as Announced 187 3.3.9. Legal Fictions 190 3.4. INTERACTIONAL CONCEPTIONS OF LAW & BORDER CONTROL 190 3.4.1. Border Control as a Unilateral Projection of Power 191 3.4.2. Interactional Conceptions of Law & the Boundaries of the Moral Community 194 3.5. CONCLUSION 197 CHAPTER IV: RESISTING EXCEPTIONAL BORDER CONTROL LAW 201 4.1. INTRODUCTION 201 4.2. THE HISTORY OF RELIGIOUS ASYLUM 204 4.2.1. Biblical Sources for Religious Asylum 204 4.2.2. Religious Asylum in Ancient Greece 206 4.2.3. Religious Asylum in Roman Law 208 4.2.4. Religious Asylum in the Medieval & Modern Periods 211 4.2.5. Implications of the History of Religious Asylum 214 4.3. THE US CHURCH SANCTUARY MOVEMENT(S) 215 4.3.1. The Context: Politicized Refugee Determinations 215 4.3.2. The US Sanctuary Movement 218 4.3.3. The Contested Legality of the US Sanctuary Movement 219 4.3.4. The Sanctuary Trial 222 4.3.5. The Culmination of the Sanctuary Movement 225 4.3.6. A New Sanctuary Movement? 227 4.4. CANADIAN CHURCH SANCTUARY INCIDENTS 232 4.4.1. The Lippert Study: Canadian Sanctuary Incidents 232 4.4.2. Contextualizing Success Rates in Canadian Sanctuary Incidents 235 4.4.3. Screening Procedures: Mimicking Official Refugee Determinations 236 4.4.4. Policy Change & Sanctuary Incidents 238 4.4.5. Recent Trends: Violations of Sanctuary 240 4.4.6. The Contested Legality of Canadian Sanctuary Incidents 243 4.4.7. Three Narratives About Sanctuary & Law 246 4.4.8. Sanctuary and Positive State Law 248 4.4.9. The Legality of Taking Sanctuary 249 4.4.10. The Legality of Providing Sanctuary 254 4.4.11. Canadian Sanctuary Practices & the Rule of Law 264 4.5. CONCLUSION 266 CHAPTER V: CONCLUSION 271

5.1. INTRODUCTION 271

x 5.2. REVISITING THE TWO-STEP OF LIBERAL PHILOSOPHY 274 5.2.1. Walzer's Promise: Pluralist Complex Equality 276 5.2.2. Benhabib's Promise: Pluralist Democratic Deliberations 279 5.3. THE CONTRIBUTION OF LEGAL SCHOLARS 283 5.3.1. Challenging One-Way Projections of Power that Take Legal Forms 285 5.3.2. Legal Pluralism & Resistance to Strains on Legality 290 5.3.3. A Pluralist Alternative to Exceptionalism in Border Control 293 5.4. A RESEARCH AGENDA 296 5.4.1. Challenging Under-Enforced Migration Laws 297 5.4.2. Challenging Legally Exceptional Extra-Territorial Border Control 299 5.5. CONCLUSION 303 APPENDIXES 307 APPENDIX A: METHODOLOGY OF REFUGEE CLAIM GRANT RATE STUDY 307 APPENDIX B: GRANT RATES AMONG CANADIAN REFUGEE ADJUDICATORS IN 2006... 309 BIBLIOGRAPHY 313 JURISPRUDENCE 313 Australia 313 Canada 313 Nauru 314 South Africa 314 United Kingdom 315 United States 315 International 316 LEGISLATION & REGULATIONS 316 Ancient Rome 316 Australia 316 Canada 316 Catholic Church 317 France 317 Nauru .-. 318 United Kingdom 318 United States 318 INTERNATIONAL LEGAL INSTRUMENTS 318 International Human Rights Instruments 318 Other International Treaties & Agreements 319 SECONDARY MATERIALS 319 Monographs 319 Articles 324 Documents, Reports & Press Releases (Government- Canada) 334 Documents, Reports & Press Releases (Government - United Kingdom) 336 Documents, Reports & Press Releases (Government - United States) 337 Documents, Reports & Press Releases (International Organizations) 337 Documents, Reports & Press Releases (Non-Governmental Organizations) 338 Media Reports 340 Films 346

XI xii Something there is that doesn't love a wall, That sends the frozen-ground-swell under it, And spills the upper boulders in the sun...

Something there is that doesn 't love a wall, That wants it down.

- R. Frost

Xlll xiv CHAPTER I: INTRODUCTION

Why do people move? What makes them uproot and leave everything they've known for a great unknown beyond the horizon? Why climb this Mount Everest of formalities that makes you feel like a beggar? Why enter this jungle of foreignness where everything is new, strange and difficult? The answer is the same the world over: people move in the hope of a better life.

- Y. Martel1

1.1. Introduction

Recent years have seen an explosion of academic interest in border control. Much of this interest was prompted by the dramatic events in New York at the opening of the 21st century. It is, therefore, not surprising that contemporary scholarship about border control frequently pursues issues relating to perceived tensions between national security and human rights norms, with a particular focus on the implications of these tensions for international and constitutional law.3 Although the contested relation between national security and human rights norms in the border control context carries important implications, it should nonetheless be kept in mind that national security issues concern a relatively small number of the people affected by border control regimes. The more day- to-day efforts undertaken to limit unwanted immigration have a much wider impact.

1 Y. Martel, The Life of Pi: A Novel (Toronto: Random House, 2001) at 78. On 11 September 2001, airliners hijacked by non-US citizens destroyed two skyscrapers in New York, provoking heated public debates over border control policy and national security. S. Schmemann, "Hijacked Jets Destroy Twin Towers and Hit Pentagon in Day of Terror: President Vows to Exact Punishment for 'Evil'" in The New York Times (12 September 2002) Al. See e.g. R. Daniels et al., eds., The Security of Freedom: Essays on Canada 's Anti- Terrorism Bill (Toronto: U of T Press, 2001); E. Brouwer, et al., eds., Immigration, asylum and terrorism : a changing dynamic in European law (Nijmegen: Centre for Migration Law, 2003); E. Guild & A. Baldaccini, eds., Terrorism and the foreigner : a decade of tension around the rule of law in Europe (Boston: Martinus Nijhoff, 2007); K. Tumlin, "Suspect First: How Terrorism Policy Is Reshaping Immigration Policy" (2004) 92 Cal. L. Rev. 1173; D. Kerwin, "The Use and Misuse of 'National Security' Rationale in Crafting U.S. Refugee and Immigration Policies" (2005) 17 Int'l J. Refugee L. 749.

1 2

It goes without saying that all contemporary affluent states make strenuous efforts to prevent unwanted immigration, including major migration destination states such as Canada. However, despite the pervasiveness of border control practices aimed at limiting unwanted immigration, questions remain about the basic legitimacy of these practices. As Joseph Carens, a liberal political philosopher, poignantly asks: Perhaps borders and guards can be justified as a means of keeping out criminals, subversives or armed invaders. But most of the people trying to get in are not like that. They are ordinary, peaceful people, seeking only the opportunity to build decent, secure lives for themselves and their families... What gives anyone the right to point guns at them?

This question about the legitimacy of deploying coercive state power against peaceful would-be immigrants becomes all the more pressing when one considers that restrictive border control policies in affluent states frequently serve to entrench massive global disparities in wealth. As Carens notes, "[cjitizenship in the modern world is a lot like feudal status in the medieval world."5 That is to say, citizenship is a largely inherited status that has a significant impact on people's life trajectories: To be born a citizen of an affluent country like Canada is like being born into the nobility (even though many belong to the lesser nobility). To be born a citizen of a poor country like Bangladesh is (for most) like being born into the peasantry in the Middle ages. In this context, limiting entry to countries like Canada is a way of protecting a birthright privilege.

These parallels between citizenship and feudal status leads Carens to ask why many liberal thinkers who object to feudal birthright privilege do not find limits on immigration to affluent states to be similarly objectionable.

This dissertation represents my attempt to work out what legal scholars might have to contribute to discussions among liberals in response to Carens' provocative questions about the legitimacy of restrictive border control practices in affluent states such as Canada.

4 J. Carens, "Aliens and Citizens: The Case for Open Borders" (1987) 49 The Review of Politics 251 [Carens, "Borders"] at 251 (emphasis added). J. Carens, "Cosmopolianism, Nationalism, and Immigration" in R. Beiner and W. Norman (eds.), Canadian Political Philosophy (Oxford: Oxford U.P., 2001) 17 at 29. 6 Ibid. Ibid. 3

1.2. An Overview of the Argument

One of the contributions that legal scholars can make to debates regarding justice in the border control setting is to highlight the ways in which the boundaries around communities are the ongoing products of legal struggles between states, non-state actors and migrants. In this dissertation I will argue that by exposing the constantly adapting legal technologies that states deploy to create and police their boundaries, as well as the legal strategies that migrants and their allies use to contest and circumvent these boundaries, legal scholars can challenge the common view that the liberal principles and norms that regulate relations within political communities are inapplicable to questions surrounding the legitimacy of boundaries around political communities. I argue, in other words, that legal scholars can helpfully contest the notion that border control is properly understood to be morally, politically and legally exceptional.

A significant implication of challenging the view of border control as exceptional is that such a challenge can serve to undermine what I call in this dissertation the "two- step of liberal philosophy". Generally speaking, two-stepping liberal philosophers hold that questions regarding the boundaries around polities cannot be evaluated against the usual liberal understandings of justice because liberal conceptions of justice apply only within constituted polities whose members (i.e. citizens) are presumed to be equal. More specifically, these thinkers contend that liberal conceptions of justice do not tell us who ought to be equal citizens, but only how relations between equal citizens ought to be structured through liberal laws and legal institutions. In its most extreme form, the two- step of liberal philosophy leads some scholars to suggest that liberalism is incapable of offering any normative guidance about questions of justice in the border control context.

In this dissertation I set out one way in which it may be possible to get around the two-step of liberal philosophy by drawing on legal geography, interactional legal theory, and legal pluralism. The argument will proceed along the following lines. 1.2.1. Chapter I: Liberalism & Border Control

In the remainder of the present Chapter, I explore the two-step of liberal philosophy. I argue that many liberal scholars concerned with justice begin their analyses by briefly articulating notional lines around the community within which they believe discussions about justice are properly situated (step-1). They then spend the bulk of their time evaluating whether particular laws and institutions treat those included within the posited community in accordance with various principles of justice (step-2). Such scholars view step-1 as a precondition for discussions of politics, law and justice. The major problem with such an approach, I contend, is that the discursive tools developed to engage in step-2 discussions are inaccessible in step-1. That is to say, such an approach is not up to the task of inquiring into how the boundaries of the community ought to be drawn. Because, however, the question of who belongs - and who ought to belong - to a community is central to border control, such a move makes it difficult to assess the legitimacy of border control policies and laws. This leads many liberal scholars to suggest that border control is an exceptional subject, one for which standard principles of liberal justice do not offer meaningful normative guidance. After setting out this problematic, I note that some liberal thinkers, including Michael Walzer and Seyla Benhabib, hint at - but fail to fully pursue - what I view as promising routes for moving beyond two-step reasoning and the exceptional understandings of border control such reasoning engenders.

1.2.2. Chapter II: The Legal Geography of Border Control

Chapter II draws parallels between the exceptional understanding of border control embraced by many liberal philosophers, and the exceptional treatment of border control law in the legal systems of major migration destination states such as Canada,

Australia and the United States. The main contention of the chapter is that the common characterization of border control as an exceptional area of law hinges on an understanding of borders as peripheral lines delimiting territorially sovereign political communities. I argue, however, that this understanding can no longer be seriously sustained in the face of contemporary border control practices. In fact, I suggest that these practices do not aim primarily at policing movement across territorial peripheries (i.e. movement across geographical lines that delimit the inside / outside of legal orders). Rather, contemporary border control practices aim principally at structuring relations between citizens and non-citizens in a manner that departs from standard human rights norms. More specifically, contemporary border control practices aim to avoid the scenario whereby migrants - especially asylum seekers - successfully make claims against the destination state by resorting to the human rights and administrative due process norms at the heart of the destination state's legal system. In other words, contemporary border control practices involve an exceptional use of law whereby legal processes are deployed to limit access to the very norms that constitute the legal system.

1.2.3. Chapter III: The Legal Pathologies of Border Control

Chapter III then attempts to set out an argument as to why exceptional border control law is troubling from the perspective of liberal legal theory. In particular, I suggest that border control law involves the use of legal instruments as one-way projections of power. In effect, border control law aims to maintain a particular relation between the state and migrants. This relation is one that emphasizes the state's ability to unilaterally act upon migrants and minimizes the obligations of the state to respond to or interact with them. Drawing on Lon Fuller's interactional theory of law, however, I argue that legal relations cannot be structured in purely unilateral terms without producing what Fuller calls legal pathologies or visible strains on legality. Next, I offer an analysis of the strains on legality that Fullerian scholars expect to encounter when legal forms are deployed as top-down assertions of power. I then demonstrate that these pathologies are, in fact, present in the border control setting. The significance of establishing that border control law involves unilateral projections of state power in a manner that strains principles of legality is that Fullerian scholars have identified strategies to counteract unilateral assertions of state power by capitalizing on the fact that these assertions take a legal form.

1.2.4. Chapter IV: Resisting Exceptional Border Control Law

Chapter IV explores one particularly promising strategy for challenging unilateral projections of state power over migrants that take legal forms. That strategy relies on 6

legal pluralism, the idea that in any given geo-political site there may be multiple intersecting legal orders. Because of the simultaneous presence of multiple legal orders, where strains on legality in one legal order lead to particularly egregious results, other legal orders may step in to provide viable governing frameworks. I argue that Canadian and US church sanctuary practices, whereby non-citizens seek the assistance of religious institutions to avoid deportation at the hands of secular authorities, offer examples of non-state legal orders that effectively intervene in the border control setting to challenge strains on legality produced by exceptional border control laws. To explore these interventions, I first detail the legal history of church sanctuary. Next, I examine two distinct US church sanctuary movements, as well as Canadian church sanctuary incidents. In this examination, I pay particular attention to the complex and contested role played by arguments about the rule of law and what Fuller called the principles of legality. I argue, in particular, that although sanctuary practices are often criticized by representatives of the state for violating the rule of law, church sanctuary practices can also be understood as a legal pluralist strategy for simultaneously exposing and challenging strains on legality produced by exceptional border control law. I conclude that church sanctuary practices in North America have been successful not only in shielding particular migrants from especially harsh consequences of strains on legality in the border control setting, but also in accomplishing major shifts in state-based border control policy that have served to enhance respect for rule of law principles. In other words, church sanctuary offers an example of a viable legal pluralist response to strains on legality that emerge as a result of unilateral projections of state power onto migrants.

1.2.5. Chapter IV: Beyond Exceptional Understandings of Border Control

Chapter V, my concluding chapter, attempts to draw together lessons that can be learned from my examination of legally exceptional forms of border control through the lens of legal geography, interactional legal theory, and legal pluralism. I suggest that such an examination highlights legal strategies for challenging exceptional exercises of power over those constructed as "others". I also contend that these strategies point to a fruitful way to combine insights found in the work of Michael Walzer, Seyla Benhabib and Lon Fuller, in order to rethink the two-step of liberal philosophy and the exceptional 7 understandings of border control to which it leads. More specifically, I argue that by drawing on the pluralism present in contemporary liberal societies we can identify social spheres, institutions and practices where discussions about justice with regard to specific border control procedures (i.e. step-2) can incrementally corrode - though not entirely erase - the boundaries drawn around communities (i.e. step-1).

1.3. Setting the Stage: Liberalism & Border Control

Before proceeding to the main argument presented in this dissertation, I would like to take the remainder of this Chapter to set out the context within which the argument is situated: discussions among liberals about border control and immigration law.

In affluent liberal states around the world one frequently encounters the notion that border control is an exceptional legal subject, and that constitutional rights and due process norms are not applicable with their regular force in this area of law. Perhaps the most pernicious manifestation of the exceptional nature of border control and immigration law are "legal black holes"8 - or, to borrow Gerald Neuman's terminology, "anomalous zones"9 - in which states undertake border control activities purportedly free from any rule of law constraints. The detention centers maintained by the US in Guantanamo Bay10 and by Australia on the small island nation of Nauru" are paradigmatic examples of legal black holes employed to this end.

For discussions of legal black holes see, D. Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge U.P., 2006); J. Ferejohn & P. Pasuino, "The Law of the Exception: A Typology of Emergency Powers" (2004) 2 International Journal of Constitutional Law 210; G. Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford U.P., 1998); G. Agamben, State of Exception (Chicago: U. Chicago P., 2005). 9 G. Neuman, "Anomalous Zones" (1996) 48 Stanford Law Review 1197. 10 J. Steyn, "Guantanamo Bay: The Legal Black Hole" (2004) 53:1 International and Comparative Law Quarterly 1; M. Robinson, Statement of High Commissioner for Human Rights on Detention of Taliban and Al Qaida Prisoners in Guantanamo Bay, Cuba (16 Jan 2002), online: http://www.unhchr.ch (accessed: 15 Sept 2007). Note that Guantanamo Bay was used as a detention center for US-bound Haitian asylum seekers intercepted on the high seas long before its present manifestation as a detention center for terrorism suspects. H. Koh, "America's Offshore Refugee Camps" (1994) 29 U. Rich. L. Rev. 139. 8

In a recent article, Boaventura de Sousa Santos links the creation of such legal black holes to a deep logic that ties western legal traditions to colonialism, a logic he terms "abyssal thinking": Modern western thinking...[operates] through abyssal lines that divide the human from the sub-human in such a way that human principles don't get compromised by inhuman practices. The colonies provided a model of radical exclusion that prevails in modern Western thinking and practice today as it did during the colonial cycle... Today as then, the legal and political civility on this side of the line is premised upon the existence of utter incivility on the other side of the line. Guantanamo is today one of the most grotesque manifestations of abyssal legal thinking, the creation of the other side of the line as a non-area in legal and political terms, an unthinkable ground for the rule of law, human rights, and democracy.12

In other words, according to Santos, when contemporary Western states create exceptional legal sites such as the detention center in Guantanamo Bay they are simply continuing the colonialist Western tradition of regulating relations among full (i.e. white, affluent, able-bodied, etc.) citizens in accordance with basic human rights and the rule of law, while simultaneously setting up extra-legal spaces in which to engage in acts of violence and appropriation over those constructed as "others".

Santos notes, moreover, that one need not resort the extreme examples of legal black holes in order to witness the creation of "abyssal lines," lines which delimit zones where liberal affluent states suspend human rights, the rule of law, and democracy in favor of colonialist governance through violence and appropriation. Rather, according to Santos, "abyssal lines" are visible in the contemporary era whenever the state deals with at least three groups of people: "the terrorist, the undocumented migrant worker, and

1' P. Mathew, "Australian Refugee Law in the Wake of the Tampa" (2002) 96 Am. J. Int'l L. 661; S. Taylor, "Protection Elsewhere/Nowhere" (2006) 18 Int'l J. Refugee L. 283; S. Kneebone, "The Pacific Plan: The Provision of'Effective Protection'?" (2006) 8 Int'l J. Refugee L. 696. B. de Sousa Santos, "Beyond Abyssal Thinking: From Global Lines to Ecologies of Knowledges" in Eurozine (29 Jun 2007), online: http://www.eurozine.com/articles/2007- 06-29-santos-en.html (accessed: 10 Oct 2007) at 4-5. 13 Ibid, at 8-9. 9 the refugee. In different ways, each carries along with her the abyssal global lines that define radical exclusion and legal non-existence."14

Perhaps the most obvious manifestation of "abyssal lines" drawn around categories of persons (rather than around exceptional legal spaces such as Guantanamo Bay) lies in restrictions on the constitutional and due process rights of suspected terrorists, undocumented migrants and refugee claimants in comparison to the rights enjoyed by regular citizens.15 The paradigmatic example of such restrictions can be found in the use of sweeping privative clauses in the immigration legislation of several liberal affluent jurisdictions that limit16 - or even abolish outright17 - judicial review of decisions regarding the admission, detention and deportation of non-citizens. Suspected terrorists, undocumented migrants and refugee claimants are literally excluded or erased from the state-based legal orders that are constituted by constitutional and due process rights when their ability to access these rights is limited. It is in this respect that suspected terrorists, undocumented migrants and refugee claimants - like detainees in Guantanamo Bay - become, in Santos' terms, "legally non-existent", irrespective of their actual physical location.

In Chapter II, I examine in detail the legal strategies states employ in order to sustain their ability to deal with non-citizens exceptionally, that is to say, in a manner that departs from due process and other human rights norms. As a result, I will not pursue the matter further here. Instead, what I would like us to concentrate on for the remainder of this Chapter is how the characterization in many liberal affluent jurisdictions of border

Ibid, at 15-16 (emphasis added). Ibid. See e.g., Immigration and Refugee Protection Act, S.C. 2001, c.27, ss.72-75 (requiring those seeking judicial review of Canadian immigration decisions to first seek leave from the Federal Court, and limiting further appeals of Federal Court decisions to cases where the Federal Court judge issuing the decision grants permission to appeal his or her decision); Nationality, Immigration and Asylum Act 2002 (U.K.), 2002, c. 41, ss.81-117 (placing severe restrictions on the ability of migrants - and in particular asylum seekers - to judicially review negative immigration or asylum determinations). See e.g., Migration Act 1958 (Cth), s.474 (removing the authority of courts to offer the remedies of "prohibition, mandamus, injunction, declaration or certiorirari" with respect to virtually all immigration decisions in Australia). I O Dyzenhaus, supra note 8 at 102-120. 10

control law as legally exceptional finds an analogue in the way that many liberal political theorists approach border control issues. A couple preliminary points, however, are worth noting before turning to my examination of liberal political theorists' approaches to border control.

First, it is important to note that I am using the term "liberal" in its broadest possible sense. By "liberal" I mean those who are committed to individual liberty, equality, basic human rights and the rule of law. This broad characterization includes within its ambit many who are traditionally understood as critics of liberalism, including for example, most communitarians and social democrats. I acknowledge that some readers may find my definition of liberalism overly broad. The terminological point here, however, is not central to my argument, so I encourage such readers to simply substitute some other label for what I am calling liberalism.

Next, I would like to emphasize that I am not attempting to assert a causal relation between the way that many liberal political theorists approach border control and the way that contemporary liberal affluent states deal with border control issues. I am, to put the point crudely, not seeking to blame liberal political theorists for the exceptional legal treatment of border control within affluent liberal states.19 Rather, I want to explore why many liberal theorists fail to see anything wrong with the exceptional legal treatment of border control, irrespective of the ultimate motivation for such exceptional treatment.

1 To the contrary, I believe that many of the worst excesses in border control and immigration and law result not from liberalism but from racism, xenophobia, and (at times miscalculated) perceptions of self-interest. For discussions of links between restrictive immigration policies and racism, xenophobia and self-interest, see e.g.: N. Sharma, "Canadian Nationalism and the Making of a Global Apartheid" in Women & Environments International Magazine (Fall, 2005) 9; N. Sharma, "Immigrant and Migrant Workers in Canada: Labour Movements, Racism and the Expansion of Globalization" (2002) 21 Canadian Women Studies 18; V. Bashi, "Globalized Anti- Blackness: Transnationalizing western immigration law, policy, and practice" (2004) 24:4 Ethnic and Racial Studies 584; N. Bhuta and G. Costello, "Global Apartheid? Controlling Immigration in the Global Village" (2001) 54 Arena Magazine 31; I. Abella & H. Troper, None is Too Many: Canada and the Jews of Europe, 1933-1948, 3rd ed. (Toronto: Key Porter, 2000); A. Richmond, Global apartheid: refugees, racism, and the new world order (Oxford: Oxford U.P., 1994); P. Ward, White Canada Forever (Montreal: McGill-Queen's P., 1990); M. Trebilcock, "The Law and Economics of Immigration Policy" (2003) American Law and Economics Review 271. More precisely, I want to examine how influential liberal political theorists deal (or fail to deal) with what I see to be a problematic feature of border control: the attempt by liberal affluent states to govern migration in a manner that departs from standard constitutional and due process norms. I will then, in my final chapter, explore how legal scholars who adopt sophisticated approaches to legal normativity can helpfully contribute to debates among liberal thinkers about border control by bringing greater attention this problematic feature of migration law.

Finally, I would like to briefly note three further reasons why I focus on liberal thinking about border control, rather than on approaches to border control adopted by non-liberal political thinkers.

First, liberalism - broadly defined - is the dominant political approach in the affluent states (particularly Canada, Australia, and the United States) whose border control policies I examine in this dissertation. As a result, arguments about how border control policies in these states ought to be evaluated simply cannot avoid engaging with liberal thinking on the subject.

Second, liberal perspectives on border control are, in my view, more interesting than the perspectives on border control offered by many non-liberal approaches. It is unremarkable, for instance, that ethno-nationalists who believe that the state exists solely to forward the interests of an ethnically, religiously or racially delimited community might hold that relations between citizens should receive radically different treatment than relations between citizens and non-citizens - supposing, of course, that all members of the relevant ethnically, religiously or racially delimited community are unproblematically always already citizens. Along similar lines, it is hardly surprising that fascist political thinkers might advocate different approaches to thinking about relations among citizens, on the one hand, and between citizens and non-citizens, on the other hand. Indeed, fascist thinkers such as Carl Schmitt consider decision-making regarding non-citizens to be "political" (i.e. relating to the "friend" / "enemy" distinction) rather 12

than "legal" in nature. As we will shortly see, however, for liberal thinkers the matter is much more complex. In particular, liberal principles of individual liberty, equality and the rule of law, push liberal theorists towards viewing differential treatment on the basis of citizenship - particularly birthright citizenship - as problematic.21 At the same time, however, all contemporary liberal regimes treat citizens and non-citizens differently, especially with respect to issues surrounding admission, detention and deportation. In fact, the ability to effectively control state borders against unwanted migration is often considered a constitutive feature of state sovereignty.22 In recent years, moreover, the ability of states to control their borders has become a major preoccupation for affluent states that perceive themselves to be subject to increasingly severe migration pressure from developing-world migrants seeking access to economic opportunities that are unavailable in their countries of origin.23 Indeed, many in liberal affluent states feel that without harsh restrictions on migration, there would be an influx of millions of migrants from the developing world, which would overwhelm local infrastructure capacities, threaten social safety networks, and ultimately undermine liberal democratic institutions. In the end, even if one is skeptical of such alarmist views about the likely effects of uncontrolled international migration,25 the link between state sovereignty and border control remains deeply significant for liberals because sovereign states are currently among the few institutional frameworks within which liberal institutions are operationalized on a wide scale. In this context, liberal thinkers must somehow reconcile

See generally, C. Schmitt, The Concept of the Political (Chicago: U. Chicago P., 1996). See notes 66-77 (and accompanying text). 22 As we shall see, the notion that control over migration decisions is partly constitutive of state sovereignty plays a foundational role in migration jurisprudence in liberal affluent states. See Chapter II, notes 3-9 (and accompanying text). 23 For an excellent discussion of the extent of the migration pressure that liberal affluent states perceive themselves to be facing see, P. Martin, Bordering on Control: Combating irregular migration in North America and Europe (Geneva: International Organization for Migration, 2003). For particularly extreme examples of such a view see e.g. P. Brimelow, Alien Nation: Common sense about America's immigration disaster (New York: Random House, 1995); P. Buchanan, State of Emergency: The third world invasion and conquest of America (New York: Thomas Dunne Books, 2006). 5 Many scholars suggest that fears regarding the negative consequences of significantly increased migration to affluent states are seriously exaggerated. See e.g. J. Simon, The Economic Consequences of Migration (Ann Arbor: U. Michigan P. 1999); Trebilcock, supra note 19. their impulses towards liberty and equality, on the one hand, and towards sovereign power over border control by liberal states, on the other hand. It is this attempt at reconciliation that, in my view, makes liberal thinking about border control interesting: in contrast to fascists, racialists, ethno-nationalist and the like, liberals encounter border control as a problem involving competing foundational normative principles. Indeed, it is these competing normative considerations that make the questions about liberal perspectives on border control posed by Joseph Carens, with which I began this Chapter, so intriguing.

The third and final reason why I focus on liberal approaches to border control is because the tension between competing norms for liberal political theorists confronted with border control issues tracks onto a tension in the way law in affluent liberal states attempts to deal with border control controversies. As we shall now see, many prominent liberal thinkers ultimately give priority to sovereignty over liberty, equality and the rule of law when they seek to resolve the tensions they encounter in the border control context. Border control law in liberal affluent states assigns a similar priority to sovereignty. Working out a way to encourage a more balanced approach that does not accord priority to sovereignty along these lines is one of the main aspirations of this dissertation.

With these preliminary considerations out of the way, let us now turn to an examination of how prominent liberal political thinkers understand border control law. In this examination I want to pay particular attention to why many influential liberal theorists view border control as exceptional, as a matter for which regular liberal norms do not apply with the full force.

1.3.1. The Two-Step of Liberal Philosophy

Many prominent liberal thinkers interested in questions regarding the legitimacy of laws and political institutions engage in what I will call throughout this dissertation

6 For an interesting discussion of the tension between sovereignty and human rights norms in the migration setting, see B. de Sousa Santos, Toward a New Legal Common Sense, 2nd ed. (London: Butterworths, 2002) at 215-237. 14

"the two-step of liberal political philosophy". Such thinkers begin by briefly articulating notional lines around the community within which discussions about justice are situated (step-1). They then move on to spend the bulk of their time evaluating whether particular laws or institutions treat those included within the posited community in accordance with various principles of justice (step-2). Within this two-step process, step-1 is understood to be a precondition for embarking upon meaningful step-2 discussions about the legitimacy of particular laws and institutions. As representative of two-step reasoning, consider the following passage from Ronald Dworkin's Law's Empire: We treat community as prior to justice and fairness in the sense that questions of justice and fairness are regarded as questions of what would 97 be fair or just within a particular political group. Note that Dworkin's use of "prior" here should not be read simply as an acknowledgment of the empirical reality that conversations about justice and fairness generally arise within constituted political communities. That is to say, Dworkin's point is not that, as a historical matter, until an actual community is constituted, it seems unlikely that anyone will ask questions about what would be just or fair for that community. Rather, his point is that fairness and justice involve a set of questions about how to properly structure relations among members of a constituted community. Furthermore, for Dworkin, fairness and justice involve questions not about how to structure relations within any community, but rather within a particular type of community: genuine political communities, or what he calls "communities of principle".28 In such communities, the notion of "integrity" plays a constitutive role: people are members of a genuine community only when they accept that their fates are linked in the following strong way: they accept that they are governed by common principles, not just by rales hammered out in political compromise. Politics has a different character for such people. It is a theater of debate about which principles the community should adopt as a system, which view it should take of justice, farness, and due process, not the different story, appropriate to... [other forms of communities] in which each person tries to plant the flag of his [sic] convictions over as large a domain of power or rules as possible. Members of a society of principle accept that their political rights and duties are not exhausted by the particular decisions their political institutions have reached, but depend, more generally, on the scheme of principles those decisions presuppose and endorse. So each member accepts that others have rights

R. Dworkin, Law's Empire (Cambridge: Belknap P., 2001) at 208. Ibid, at 218. 15

and the duties flowing from that scheme, even though these have never been formally identified or declared. Nor does he suppose that these further rights and duties are conditional on his wholehearted approval of that scheme; these obligations arise from the historical fact that his community has adopted that scheme, which is then special to it, not the assumption that he would have chosen it were the choice entirely his. In short, each accepts political integrity as a distinct political ideal and treats the general acceptance of that ideal, even among people who otherwise disagree about political morality, as constitutive of the political 29 community. It is, according to Dworkin, this commitment to political integrity among members of a genuine political community, that leads to the promise that laws will be chosen, changed, developed, and interpreted in an overall principled way. A community of principle, faithful to that promise can claim... moral legitimacy - that its collective decisions are matters of obligation and not bare power - in the name of fraternity.

Or again,

Integrity... insists that each citizen must accept demands on him, and may make demands on others, that share and extend the moral dimensions of any explicit political decisions. Integrity therefore fuses citizens' moral and political lives: it asks the good citizen, deciding how to treat his neighbor when their interests conflict, to interpret the common scheme of justice to which they are both committed just in virtue of citizenship.

It is in this respect that Dworkin's assertion that "we treat community as prior to justice and fairness" should be read to mean that justice and fairness are ways of thinking about social relations within - but not across - communities whose boundaries (i.e. who counts as a citizen, as a member of the "fraternity"?) are always already defined.

A major limitation of what I am calling the two-step of liberal philosophy - or, in Dworkinian terms, the notion that communities of principle are prior to justice - is that the tools developed to engage in step-2 analysis are largely inaccessible in step-1. That is to say, the discussions about the legitimacy or fairness of particular laws or institutions

Ibid, (emphasis added). 30 Ibid, at 214 (emphasis added). 31 Ibid, at 189-190. 32 Ibid, at 185 ("Integrity holds within political communities, not among them, so any opinion we have about the scope of the requirement of coherence makes assumptions about the size and character of these communities"). 16

do not inquire into how the boundaries around the community ought to be drawn. Indeed, as we shall shortly see, the two-step leads some liberal theorists to go so far as to assert that one cannot intelligibly pose questions about the legitimacy or fairness of community boundaries.33

This feature of the two-step causes serious problems wherever controversies in political philosophy can be traced back to disagreements about the boundaries around the community that law and politics serve. This is no minor matter. After all, many of the political controversies that most capture the contemporary imagination relate to conflicting delimitations around communities. Consider, for example: colonialism, slavery, Apartheid, aboriginal self-government, the treatment of women and children as property, new reproductive technologies, animal rights, and deep green environmentalism. In each case, the question of who belongs - and who ought to belong - to the community within which discussions of justice occur is one of the major issues in dispute. According to logic of the two-step, these are step-1 problems, which must be resolved prior to discussions about justice in the context of particular laws and institutions. The difficulty, however, is that these controversies are themselves a product of particular laws and institutions. It takes laws, for example, to establish that racial minorities, women and children, or non-human animals are property rather than persons. Similarly, it takes legal institutions to create a res nulius out of entire continents inhabited by indigenous peoples. Such laws and institutions leave two-stepping liberal theorists in a bit of a bind. On the one hand, it seems untenable to assert that liberal philosophers simply need not engage with controversies regarding the legitimacy of these laws and institutions. On the other hand, it is not clear how one can inquire into the legitimacy of

See text accompanying note 80. Indeed, it would seem obvious that liberals must engage with all controversies regarding the legitimacy of particular laws. However, it is surprisingly common for liberal theorists to examine the legitimacy of laws only as they pertain to citizens. More troublingly, many liberal scholars simply fail to attend to who is left out of their analysis when they employ the language of citizenship (i.e. permanent residents, temporary residents, undocumented migrants, asylum seekers, etc.). In my experience, when pressed, many such scholars assert that when they use the language of citizenship they do not, in fact, mean to restrict their analysis to those with legal citizenship status. Rather they claim to use citizenship as a shorthand for something like "all long term residents" or "all those subject to the law". I was particularly struck by this phenomenon at a 17 laws and institutions that establish the boundaries around communities if bounded communities are treated as a precondition for discussions about justice or legitimacy.

Nowhere is this problem in two-step reasoning more clearly presented than when liberal thinkers consider (however briefly) the legitimacy of border control policies in liberal affluent states. A helpful place to begin to see how this problem plays out is the work of the liberal political philosopher John Rawls.

1.3.2. John Rawls: A (Bounded) Theory of Justice

In A Theory of Justice John Rawls sets out a theory regarding "the role of... principles [of justice] in assigning rights and duties in defining the appropriate division of social advantages." It is important to note that Rawls wants his account of the role of principles of justice to be convincing for members of pluralist communities who do not necessarily have a shared conception about the "good", or the ends towards which human

•3/: beings ought to strive. As a result, rather than building his theory of justice on the foundation of shared substantive normative aspirations, he resorts to an ideal discursive procedure. More specifically, he argues that political and legal institutions are just or legitimate to the extent that they accord with "the principles that free and rational persons concerned to further their own interests would accept in an initial position of equality as defining the fundamental terms of their association."

conference at Keele University on the topic of sexual citizenship. Feminism and Legal Theory Project Conference on The State, Governance and Citizenship Relations (Keele, May 2005). I presented a paper early on in the conference explaining why I was uncomfortable with the literature on sexual citizenship, which uncritically adopts the language of citizenship without attending to those who are excluded from citizenship. Subsequent presenters prefaced their presentations by saying that in speaking about sexual citizens they did not, of course, wish to exclude non-citizens from their analysis, but that they found the concept of citizenship helpful in exploring the sexual dimension of politics and the political dimensions of sexuality. I could not help but wonder, however, if a similar response to other exclusive terminology (e.g. the "rights of men" rather than "human rights") would have been accepted by the feminist and queer scholars in attendance. 35 J. Rawls, A Theory of Justice (Cambridge: Belknap P., 1971) [Rawls, TOJ] at 10. 36 Ibid, at 127ff. 37 Ibid, at 11 (emphasis added) 18

To approximate this initial position of equality - or, in Rawlsian terminology, the "original position" - Rawls proposes a thought experiment. He asks us to imagine that a number of self-interested individuals engage in a discussion, the outcome of which will determine the fundamental terms of association for their society. The parties to this discussion, however, are situated behind a veil of ignorance. They do not know how the various alternatives [being discussed] will affect their own particular case and they are obliged to evaluate principles solely on the basis of general considerations. It is assumed, then, that the parties do not know certain kinds of particular facts. First of all, no one knows his [sic] place in society, his class position or social status; no does he know his fortune in the distribution of natural assets and abilities, his intelligence and strength, and the like. Nor, again, does anyone know his conception of the good, the particulars of his rational plan of life, or even the special features of his psychology such as his aversion to risk or liability to optimism or pessimism.

After setting out this thought experiment, Rawls proceeds to elaborate - at great length - a hypothesis as to what agreements would emerge from a discussion that proceeds along these lines. What is important for our purposes, however, is not so much the content of the hypothetical agreements that Rawls elucidates. Rather, I want us to note the rationale behind his veil of ignorance.

Rawls argues that because the self-interested but veiled parties in the original position are uncertain as to the social position they will inhabit once the veil is lifted, they will take pains to ensure that those in all social positions are treated as fairly as possible. In essence, this is a sophisticated application of the conventional wisdom that to ensure that a cake is cut fairly in a situation where everyone wants the largest share of

38 Ibid, at 136-137. 39 Rawls argues that the veiled discussion of justice would result in something akin to a progressive welfare state. This welfare state would protect certain inviolable basic rights and freedoms, and would develop redistributive schemes that operate to the benefit of the least advantaged in society while still preserving capitalist* incentive structures to increase the total wealth to be distributed. For a formal articulation of Rawls' two principles of justice leading to the progressive welfare state, see Ibid, at 302-303. 40 In other words, Rawls assumes that the parties behind the veil of ignorance are risk- averse. For an excellent discussion of the role of risk aversion in Rawlsian thought, see, R. Musgrave, "Maximin, Uncertainty, and the Leisure Trade-Off (1974) 88:4 Quarterly Journal of Economics 625. the cake, one should set up a scenario whereby the person who cuts the cake is the last person to choose a piece. '

It is essential to keep in mind, however, that Rawls' seemingly straightforward thought experiment only results in "fairness" in relation to veiled social characteristics. Imagine the difference it would make, for instance, whether race is a veiled characteristic. Suppose that the self-interested parties in the original position were to consider whether the enslavement of racial minorities ought to be a fundamental principle of their association. Those in the racial majority may well find that such a principle accords nicely with their self-interest, and they might be willing to adopt racialized slavery as a fundamental term of their association. If race were a veiled characteristic, however, such an outcome would be impossible. The self-interested parties would refuse to allow racialized slavery lest they find themselves to be members of the enslaved racial minority once the veil is lifted.

This points to an interesting feature of Rawls's thought experiment: much of the important analytic work occurs not in fleshing out the hypothetical agreements, but rather in deciding what social characteristics ought to be veiled in the original position.

Consider, in this context, the question of whether citizenship status ought to be a veiled characteristic. In a clear example of two-step reasoning, Rawls begins his theory of justice by defining non-citizens out of his analysis. He does so by asserting - without elaboration - that his theory of justice is directed towards working out just institutions within a bounded society: "I shall be satisfied if it is possible to formulate a reasonable conception of justice for the basic structure of society conceived for the time being as a closed system isolated from other societies." Because Rawls situates his theory of justice within a closed society, the self-interested participants in the original position need not fear that when the veil of ignorance lifts, they will find themselves in the position of non-citizens seeking admission. As a result, the participants have no incentive

41 Ibid, at 85. I set aside here the question as to whether the enslavement of a racial minority would, in fact, be in the interest of a racial majority. 43 Ibid, at 8. 20

to ensure that border control laws are "fair" - in the Rawlsian sense - toward non-citizens seeking admission. Rawls' theory of justice, therefore, simply does not address the issue of fairness of border control policy.

In later work, Rawls continued to insist that non-citizens are largely irrelevant to his theory of justice on the grounds that settled boundaries around communities are prior to discussions of justice. For example, in Political Liberalism, Rawls replicates the assumption regarding the boundaries of political communities found in A Theory of Justice: I assume that the basic structure of society is that of a closed society: that is, we are to regard it as self-contained and as having no relations with other societies. Its members enter it only by birth and leave it only by death. This allows us to speak of them as born into a society where they will lead a complete life. That a society is closed is a considerable abstraction, justified only because it enables us to focus on certain main questions free from distracting details. As some point a political conception of justice must address the relations between peoples, or the law of peoples... In these lectures I do not discuss how a law of peoples might be worked out.

Later still, in The Law of Peoples, when Rawls finally addresses some of the "distracting details" related to issues of justice across bounded societies, he once again dismisses border control policy. This time he does so based on his understanding of the causes of international migration: There are numerous causes of immigration. I mention several and suggest that they would disappear in the Society of liberal and decent Peoples. One is the persecution of religious and ethnic minorities, the denial of their human rights. Another is political oppression of various forms... Often people are simply fleeing from starvation as in the Irish famine of the 1840s. Yet famines are often themselves in large part caused by political failures and the absence of decent government. The last cause I mention is population pressure in the home territory, and among its complex of causes is the inequality and subjection of women... [Rjeligious freedom and liberty of conscience, political freedom and

That is not to say that the participants in the original position will necessarily adopt closed borders policies. In some circumstances, it may be in the economic interest of citizens of a state to adopt open borders (with certain safeguards). See Trebilcock, supra note 19. The point remains, however, that border control would not be approached as a matter of "fairness" - in the Rawlsian sense - towards non-citizens. 5 J. Rawls, Political Liberalism, Expanded Edition (New York: Columbia U.P., 2005) at 12 (emphasis added) [Rawls, Liberalism]. See also Ibid, at 135-136. 21

constitutional liberties, and equal justice for women are fundamental aspects of sound social policy for a realistic Utopia. The problem of immigration is not, then, simply left aside, but is eliminated as a serious problem in a realistic Utopia.46

Rawls, then, views border control controversies as largely irrelevant for his international theory of justice, much as he dismisses these matters in his domestic theory of justice. This outcome hinges on the way that he frames his international theory of justice as being directed towards working out a Law of Peoples governing relations, not between human beings, but rather between "Peoples".47 For Rawls, the Law of Peoples arises within what he calls the Society of Peoples, whose members respect basic human rights (i.e. Peoples who are, in Rawls' terminology, either "liberal" or "illiberal but decent"). Because he assumes that large-scale migration is only ever the result of human rights violations in source countries, large migratory flows will not occur within the Society of Peoples, whose members, by definition, do not engage in human rights violations. As a result, border control does not raise serious questions of justice within the Society of Peoples.

Now, it must be said that Rawls' assertion that migration results solely from human rights violations runs contrary to virtually all sociological research on international migration. To be sure, human rights violations, colonialism, and environmental devastation do lead to significant flows of what sociologists call "forced migration". However, international migration cannot be solely understood in terms of the conditions in source countries (i.e. push factors). Nor can international migration be understood solely in terms of the conditions in affluent destination states (i.e. pull factors), although the search for economic opportunities does, of course, drive a great

J. Rawls, The Law of Peoples (Cambridge: Harvard U.P., 2001) [Rawls, Law] at 9 (emphasis added). 47 Ibid, at 23-30. 48 Ibid, at 59-88. See generally, S. Castles, "Towards a Sociology of Forced Migration and Social Transformation" (2003) 37 Sociology 13; F. Crepeau, et al (eds.), Forced Migration and Global Processes: A view from forced migration studies (Lanham: Lexington Books, 2006). 22

deal of contemporary migration. Rather, as scholars who study transnational migration networks have so persuasively demonstrated, migration is a complex social phenomenon that appears to track onto nodal and multidirectional flows of capital, information and knowledge in the global economy.51 Attributing international migration solely to human rights violations in source countries, as Rawls does, is untenable.

Not only does Rawls assert, on the basis of his dubious assumptions about the causes of migration, that immigration and border control do not raise serious issues of justice within the Society of Peoples, but he also sees migration as largely irrelevant for his non-ideal theory of the Law of Peoples (i.e. where liberal and illiberal but decent Peoples interact with either "outlaw" Peoples or "burdened" Peoples). Recall that for Rawls, liberal Peoples owe obligations not to individual non-citizens, but rather to other Peoples. As a result, when other Peoples are subject to outlaw governments that engage in systemic human rights violations, the appropriate response is not for liberal Peoples to accept individual refugees fleeing human rights violations. Rather it is to attempt to stop the human rights violations, including, in certain extreme cases, by means of military intervention. Moreover, where other Peoples are "burdened", in the sense that they lack basic resources and capital required to establish well ordered societies, the appropriate response by liberal Peoples is, once again, not to welcome individual migrants seeking economic opportunities, but rather to assist burdened Peoples to acquire the necessary

Even absent human rights violations, significant migratory pressure will result wherever large differences in labour market conditions exist across jurisdictions. See generally, Trebilcock, supra note 19. Consider a domestic Canadian analogy: the large- scale migration of workers from Newfoundland to Alberta during oil boom periods cannot reasonably be traced to human rights violations in Newfoundland. A similar point can be made for many - though not all - of the millions of Mexican undocumented workers in the United States. See generally, A. Portes, "Illegal Immigration and the International System" (1979) 26 Social Problems 425; A. Portes & J. Borocz, "Contemporary Immigration: Theoretical Perspectives on its Determinants and Modes of Incorporation" (1989) 23 International Migration Review 606; N. Schiller, et al (eds.), Towards a Transnational Perspective on Migration (New York: New York Academy of Sciences, 1992); L. Bash, et al (eds.), Nations Unbound: Transnational Projects, Postcolonial Predicaments and Deterritorialized Nation-States (New York: Gordon & Breach, 1994); Santos, supra note 12 at 219ff. Rawls, Law, supra note 46 at 23-30. 53 Ibid, at 80-81 & 89-105. 23 resources and capital. Curiously, this assistance, according to Rawls, should not generally take the form of economic assistance or military intervention: "Throwing funds at it is usually undesirable, and the use of force is ruled out by the Law of Peoples." Instead, Rawls proposes that liberal Peoples give burdened Peoples sound advice about how to develop their political culture in order to acquire the relevant resources and capital.56 This proposal relates to Rawls' view that the wealth of Peoples is contingent on their political culture, not their level of resources (and not, for that matter, on a history of colonialism, their place in the global economy, etc.).57

Rawls offers two further explanations as to why, in his view, restrictive border control policies do not raise serious questions of international justice, and why, to the contrary, closed borders are preferable to open borders in both ideal and non-ideal theory. First, in order to ensure that Peoples have incentives to maintain the capacity of their territory to support themselves in perpetuity, Rawls suggests that Peoples "must recognize that they cannot make up for irresponsibility in caring for their land and its natural resources by... migrating into other people's territory."58 In other words, closed borders can helpfully provide incentives to ensure that Peoples care for their land and manage their population growth.59 Second, Rawls contends - without elaboration, and in a footnote - that another "reason for limiting immigration is to protect a people's political culture and its constitutional principles." Though he does not explicitly draw the link, it seems that Rawls' contention here results from his view that distinct ways of life and political cultures have such significant value that assistance provided to other Peoples suffering from human rights violations or from economic privation should not come at the expense of the general right of Peoples to self-determination: Leaving aside the deep question of whether some forms of culture and ways of life are good in themselves, as I believe they are, it is surely a good for individuals and associations to be attached to their particular culture and to take part in its common public and civil life. In this way

54 Ibid, at 105-113. 55 Ibid, at 110. 56 Ibid, at 110-111. 51 Ibid, at 108-110 & 113-120. 58 Ibid, at 39. 59 Ibid, at 39 & 108-110. 60 Ibid. at39,n.48. 24

belonging to a particular political society and being at home in its civic and social world, gains expression and fulfillment. This is no small thing. It argues for preserving significant room for the idea of a people's self- determination.

Unfortunately, because Rawls does not explain in what sense he sees migration as posing a potential threat to either a People's political culture or its constitutional principles, it is difficult to evaluate the relation he posits between the right to self-determination and limits on migration. As we shall see, however, this relation is one that Michael Walzer, whose views about migration we will consider shortly, pursues in detail.

For the time being, what I want us to notice is the way that Rawls employs two distinct two-steps to remove immigration policy and border control law from his discussions about domestic and international justice. First, on the assumption that the participants to the domestic original position are members of pre-analytically bounded closed societies (step-l-A), Rawls develops a domestic theory of justice that has nothing to say about justice towards non-citizens in the context of border control policy (step-2- A). Second, on the assumption that the Society of Peoples is composed of bounded Peoples who respect basic human rights, rather than being composed of persons, he develops an ideal theory of the Law of Peoples in which border control is largely insignificant as a matter of international justice because large scale migration will not occur within the Society of Peoples. In his non-ideal theory of the Law of Peoples, Rawls acknowledges that migration pressure may result from human rights violations or a lack of access to basic economic opportunities among burdened Peoples. He contends, however, that because - once again - liberal Peoples owe obligations to other Peoples rather than to persons, liberal Peoples ought to address the underlying human rights violations (by diplomatic measures or the use of force) or lack of basic economic opportunities (by providing sound advice), rather than to accept flows of migration. Moreover, he argues that in the face of migration pressure, liberal Peoples should limit migration in order to encourage other Peoples to preserve their capacity to care for their

61 Ibid, at 111. See notes 89-126 (and accompanying text). In fact, Rawls cites Walzer as his only authority for the contention that limits on immigration can be justified in order to protect a People's political culture and its constitutional principles. Rawls, Law, supra note 46 at 39, n.48. land and natural resources, as well as to safeguard their own political culture, and their constitutional principles. In both ideal and non-ideal international Rawlsian theory, then, because the delimited community relevant to discussions of international justice is made up of Peoples rather than people (step-l-B), restrictive border control policies do not raise serious issues of international justice (step 2-B).

In my view, the disappearance of border control policy as a matter of both domestic and international justice indicates that Rawls undervalues one of the important strengths of his own work. This strength is that the thought experiment he develops in A Theory of Justice actually highlights - rather than obscures - the significance of step-1 choices in two-step reasoning.

To get a clearer view of this feature of Rawlsian thought, let us briefly return to the question of race. Suppose that one was interested in justice in the American South during the era of racialized slavery. Suppose further that the white members of American Southern society during this era made the following argument: the American South is a bounded society, and blacks are not members of that society. Finally, suppose that a white slave-owning Rawlsian were to assert that questions of justice should be resolved with recourse to Rawls' thought experiment, but that only members of society (i.e. whites) ought to participate in the veiled discussions that result in agreement regarding the fundamental terms of association of that society. In such a racially delimited Rawlsian original position, the parties to the discussion may well agree to the principles that Rawls outlines in his theory of justice, except that those principles will only apply as between whites. The relations between whites and racial minorities that might be agreed to by those in an all white original position might well look very different, and might include the enslavement of racial minorities.64

A similar argument could be made with respect to theories of justice that are bounded along a number of other lines, including gender, caste, age, socio-economic class, and so on. How then would Rawls respond to articulations of his theory of justice

1 Once again, I set aside the question as to whether the enslavement of a racial minority would, in fact, be in the interest of a racial majority. 26

that are bounded along these or other problematic lines? He would have to make an argument about who ought to be understood as members of society, who ought to be represented in the original position. To put this point in slightly different terms, he would have to make an argument about what personal characteristics ought to be veiled in the original position. These, of course, are step-1 arguments.

Here then is the strength of the Rawlsian two-step that Rawls himself undervalues: his particular formulation of the two-step in A Theory of Justice highlights the necessity of articulating a defence of the conclusions one comes to in step-1, rather than simply proceeding on the basis of untested assumptions about the legitimate boundaries around a given society and moving immediately to step-2. Curiously, however, despite being repeatedly invited to do so, Rawls never took the time to offer a sustained defence of his step-1 choices. In particular, he did not explain in detail why, in his view, non-citizens ought to be excluded from the original position.65 Fortunately, other theorists using the Rawlsian two-step have examined this question.

1.3.3. Charles Beitz & Joseph Carens: Critiques of a (Bounded) Theory of Justice

Charles Beitz is an example of a theorist who examines in detail the exclusion of non-citizens from the Rawlsian two-step. Beitz argues that to determine whether it is legitimate to restrict Rawlsian theories of justice to citizens alone, one should adopt a global original position that includes all human beings. The participants in this global original position would have their citizenship in particular states veiled. On this view, if those in such a global original position would agree to divide the world up into "Peoples" with principles of justice operating solely within particular Peoples but not across them, then Rawls' domestically bounded theory of justice can itself be justified. Beitz, however, contends that individuals in a global original position would come to more or

less the same conclusions articulated in Rawls' domestic theory of justice, but at a global scale. In other words, they would agree to global principles of justice that operate

65 Rawls, of course, was aware that all his assumptions were open to contest. The point remains, however, that he chose not to explicitly problematize his assumptions about the appropriateness of beginning both his domestic and international theories of justice with pre-analytically bounded communities, thereby making non-citizens effectively disappear from his analysis. 27 irrespective of citizenship. As a result, according to Beitz, citizenship ought to be a veiled personal characteristic in the Rawlsian original position.

Adopting a global original position, rather than a closed domestic original position, carries important implications for the specific issue of border control. Indeed, it seems unlikely that those in a global original position would accept closed border policies. Joseph Carens sets out a persuasive argument along these lines.67

Carens begins by adopting a Rawlsian global original position in which citizenship is a veiled personal characteristic. He does so on the grounds that a bounded original position is inappropriate where the policy or institution whose fairness is under consideration has affects that spill across community boundaries: Cases like migration and trade, where people interact across governmental boundaries, raise questions about whether the background conditions of the interactions are fair. Moreover, anyone who wants to be moral will feel obliged to justify the use of force against other human beings, whether they are members of the same society or not... [W]e can take it as a basic presupposition that we should treat all human beings, not just members of our own society, as free and equal moral persons. 68

Although he adopts a global original position, Carens nonetheless accepts that due to the realities of local linguistic, cultural, and historical differences there may be certain advantages to the decentralization of political power. As a result, he concedes that the participants in the global original position might well agree to establish relatively autonomous political communities similar in principle to modern states.69 However, he goes on to argue, contra Rawls, that even in an ideal world where all states respect human rights, some individuals would still have reasons to migrate. For example, [ejconomic opportunities for particular individuals might vary greatly from one state to another even if economic inequalities among states were reduced... One might fall in love with a citizen from another land, one might belong to a religion which has few followers in one's native land

C. Beitz, Political Theory and International Relations (Princeton: Princeton U.P., 1979). Carens, "Borders", supra note 4. 68 Ibid, at 255-256 (emphasis added). ^ Ibid, at 257-258. 28

and many in another, one might seek cultural opportunities that are only available in another society.70

On this basis, Carens concludes that the parties in a global original position would agree to open borders across states: Behind the "veil of ignorance," in considering possible restrictions on freedom, one adopts the perspective of the one who would be most disadvantaged by the restrictions, in this case the perspective of the alien who wants to immigrate. In the original position, then, one would insist that the right to migrate be included in the system of basic liberties for the same reasons that one would insist that the right to religious freedom be included: it might prove essential to one's plan of life.

In other words, according to Carens, Rawls ought to be committed to open borders as a basic principle of justice.72

The important point to note about this disagreement between Rawls and Carens is the way that Rawlsian step-2 outcomes regarding justice and border control hinge on the way step-1 is framed. Rawls begins with a step-1 that includes only the citizens of a particular polity. Carens begins with a step-1 that includes all human beings. Rawls offers a step-2 analysis concluding that closed borders are just. Carens, using an identical step-2 analysis, comes to the opposite conclusion.

How, then, are we to decide between these two approaches? While Rawls did not address the matter in detail, some would suggest that his later work offers an indication as to why it is appropriate to resort to bounded domestic communities in building a theory of justice. In particular, Rawls ultimately conceded that his theory of justice only applies to liberal polities where certain normative principles are already broadly shared,

/u Ibid, at 258. Ibid. 72 Carens concedes that some restrictions on migration may be justified in non-ideal Rawlsian theory. Ibid, at 258-262. For example, he notes that given current global distributions of wealth and income, were affluent states to open their borders, they may be subject to such high levels of migration as to undermine basic public order. In such circumstances, to protect the liberty interests of both citizens and non-citizens some restrictions on migration may be justifiable. Note, however, that this public order stipulation does not justify existing closed border policies in affluent states because it would be possible to drastically increase migration in any particular affluent states without leading to an immediate collapse of public order. Ibid, at 260. including most importantly the notion that all citizens are equal. On this view, the original position is simply a means to flesh out the implications of the equality of citizens on how relations within a polity ought to be structured. In other words, the original position presumes the equality of all citizens; it does not explain why all citizens ought to be considered equal. On this basis, Rawls might argue that it is inappropriate to extend the original position to a global setting where liberal understandings of equality remain deeply contested.

As Carens rightly points out, however, this is not much of an answer. After all, the initial reason for resorting to Rawls' original position was to work out a theory of justice that would be convincing to those who did not necessarily agree on basic shared values. If, however, shared basic liberal values (including the equality of citizens) are presumed, then, as Carens puts it, "what need have we for a 'veil of ignorance'? Why not move directly from the shared values to an agreement on principles of justice and corresponding institutions?"75

In the end, Rawls does not offer a persuasive response to his critics as to why it is appropriate to begin his theory of justice within either bounded polities or bounded liberal polities. It is worth noting, however, that Carens has also been criticized for failing to provide a detailed justification for his assertion that all human beings (rather than all citizens) ought to be treated as equal for the purposes of evaluating border control policies.76 Instead of offering such an explanation, Carens simply presumes that basic human equality is a widely shared principle among liberals. He then sets out an argument articulating why liberals, who presumably share this principle, ought to favour open

77 borders.

See e.g. Rawls, Liberalism, supra note 45 at 11-22; See also, John Rawls, "Justice as Fairness: Political not Metaphysical" (1985) 14 Philosophy and Public Affairs 223. 74 See above, notes 36-37 (and accompanying text). 75 Carens, "Borders", supra note 4 at 357. 76 See e.g. C. Dauvergne, "Amorality and Humanitarianism in Immigration Law" (1999) 37 Osgoode Hall L.J. 597 [Dauvergne, "Amorality"] at 607-609. 77 Carens, "Borders", supra note 4 at 35. 30

As we will now see, some scholars, noting that this disagreement between Rawls and Carens turns entirely on assumptions regarding who counts as equals for the purposes of liberal theories of justice, come to the startling conclusion that liberalism is entirely incapable of addressing questions of justice in the border control setting.

1.3.4. Catherine Dauvergne: Amorality & (Bounded) Liberalism

Catherine Dauvergne offers an argument along these lines. According to Dauvergne, the disagreement between Rawls and Carens about the legitimacy of closed borders around liberal polities reflects two distinct understandings of liberalism. Rawls adopts a version of liberalism that Dauvergne calls "classic liberalism". Classic liberalism offers a theory regarding just or legitimate relations within a bounded community of equal citizens (i.e. step-1: all equal citizens of a given polity). As Dauvergne puts it: Classical liberal conceptions of justice... assume a political and legal community and proceed to consider questions of justice as issues arising within the community... The closed border is an assumption upon which the theory is built, not something subject to examination within the theory.78

Carens, on the other hand, adopts what Dauvergne calls a "moral" version of liberalism, one that is prefaced on the equality of all human beings irrespective of their membership in a particular community (i.e. step-1: all equal human beings). In this version, closed borders involve an illegitimate moral hierarchy between members and non-members of a community.

After setting out this distinction between classic liberalism and moral liberalism, Dauvergne asserts that justice in border control policy is simply not an issue that can be addressed meaningfully within liberal theory: [Ljiberal theory does not provide an answer as to whether the community's borders should be open or closed. Both arguments are supported by certain aspects of liberalism...[T]he search for "just" immigration law in liberal society is futile.

78 Dauvergne, "Amorality", supra note 76 at 599. 79 Ibid, at 607-609. 80 Ibid, at 609. 31

There are two variations on Dauvergne's contention that liberal theory is incapable of offering a satisfying account of justice in the border control setting. The first is that there can be no consensus within liberal theory regarding the legitimacy of closed borders because the different strains of liberalism (i.e. classical and moral) lead to divergent conclusions.81 The difficulty with this straightforward assertion, however, is that while the observation that liberals disagree about the legitimacy of closed borders is undoubtedly true, it seems precipitous to call the search for a just liberal immigration policy "futile" on this basis. One can discern strains of liberalism that come to different conclusions on almost all imaginable topics. Surely, that does not mean that discussions about these topics within liberalism are "futile". It just means that these topics are controversial.

The second variation on Dauvergne's contention that liberalism is incapable of offering an account of justice in the context of border control builds on what she sees as an irresolvable tension within liberal theory: a conflict between individual autonomy and impartiality. According to Dauvergne, liberalism is strongly committed to respecting the right of individuals to develop and attempt to carry out their own life plans, that is to say, to respecting individual autonomy. At the same time, liberalism is also committed to impartiality, the notion that all individuals should be treated as beings with equal moral status. The tension Dauvergne identifies between these two commitments results from an implication of treating all individuals as beings with equal moral status: the principle of mutual aid. This principle holds that where it is possible at only minimal cost to assist another individual who is in dire need, one is obliged to offer assistance. However, in some circumstances, while the cost of aiding any particular individual is small, the number of individuals in need is overwhelmingly large. In such circumstances requiring an individual to make good on the principle of mutual aid would demand a "heroic" sacrifice which compromises that individual's autonomy. According to Dauvergne, liberalism resolves this potential conflict between individuality and impartiality by

C. Dauvergne, Humanism, Identity, and Nation: Migration laws in Canada and Australia (Vancouver: UBC Press, 2005) at 52 ("Various theorists have made arguments extrapolating liberal tenets to the migration law context, but there is little agreement about whether liberalism requires open borders or closed borders"). 82 See Dauvergne, "Amorality", supra note 76 at 610-611. 32

establishing a zone of amorality. Within this zone, the principles of impartiality and individuality "check each other, with the result that we do not require heroism as a standard of moral behavior, and we permit individuals a robust sphere of indifference within which their choice of whether to respond compassionately to those in need is 'free' in that it is morally neutral."83 In Dauvergne's view, border control in liberal affluent states offers an example of this same tension at a level of the polity: The modern debate about immigration law in liberal democracies takes place against the... spectre of millions of individuals wanting to become members of these wealthy societies. At some point... admitting more people would decrease the standard of living of existing members. To accept that immigration should be permitted until living conditions have been equalized throughout the world is surely... a heroic stance.

Against the background of these potentially large numbers of would-be migrants, "the open borders argument emphasizes impartiality while the closed borders position emphasizes limits to individual sacrifice." As a result, according to Dauvergne, "immigration law is left in a zone of amorality, an area where the core liberal values of the society do not indicate a resolution."

Although this second argument is stronger than the first, it is also problematic. The most obvious objection is that Dauvernge does not explain why it is appropriate to move from the level of what can legitimately be required from individuals to the level of what can be required of polities. It is not at all clear, for example, on what grounds polities should be entitled to the same "robust sphere of indifference" accorded to individuals under liberal theory. Another objection is that Dauvergne does not connect her analysis of border control policy to other controversies about community membership. Even if one grants that Dauvergne is right, and that closure around affluent liberal communities is necessary to prevent impermissible impositions of "heroic" sacrifices, it is hardly self-evident that closure should occur through border control law rather than through other means of delimiting membership in the community. If the concern is to limit the number of members of an affluent community so as to preserve

Ibid. Ibid, at 610. Ibid, at 611. Ibid, at 609. high standards of living, Dauvergne must explain why existing members (most of whom acquired membership as a birthright privilege) remain entitled to membership irrespective of the costs they impose on the community, whereas potential immigrants cannot claim entitlement to membership even if they would bring net benefits to the polity. Suppose for example that a number of existing citizens refuse or are unable to contribute to expanding the resources available to the community, but a similar number of potential immigrants demonstrate both a willingness and ability to do so. Would a decision to deport the existing citizens and accord citizenship instead to the potential immigrants fall within the zone of liberal amorality? Or what about the children of existing citizens? Suppose, for example, that an affluent liberal polity only accords citizenship to individuals who attain a certain level of wealth, and deports all those who fail by a certain age to attain this level of wealth. Presumably, such a practice would not fall within the zone of liberal amorality. I could multiply the examples of objectionable delimitations around who qualifies as for membership within a liberal community, but I trust the point is clear: if one argues that decisions about border control do not raise issues of justice for liberal theory, then one must explain on what basis these decisions differ from other membership determinations. In other words, one must explain in what respect step-1 choices related to border control differ from other step-1 choices that (presumably) do raise issues of justice for liberal theory.

Although Dauvergne problematically fails to offer such an explanation, Michael Walzer, who provides a sustained defense of closed borders around liberal communities, attempts to do so. It is to a consideration of his work that we will now turn.

1.3.5. Michael Walzer: (Bounded) Spheres of Justice

For that matter, it is not clear how Dauvergne's argument justifies the exclusion of non-citizens who would bring economic benefits on the receiving polity. Instead, she suggests that rather than focusing on liberal accounts of justice, advocates for non-citizens would do better to foster humanitarian treatment of non-citizens - particularly refugees - by linking such humanitarian treatment to the self-conception of affluent liberal states as responsive towards those in need. In Spheres of Justice, Michael Walzer argues that Rawls' theory of justice takes insufficient account of normative pluralism, that is to say, of the existence of competing conceptions of the "good" or the ends to which human beings strive. Recall that Rawls sought to develop a theory of justice that would be convincing in circumstances of normative pluralism. To this end, the self-interested but veiled parties in Rawls' original position are stripped of their knowledge about which conception of the "good" they hold in the real world. As a result, they will seek to distribute social resources in a manner that does not privilege one particular conception of the "good" over others. Walzer, however, contends that the hypothetical agreements developed in Rawls' original position cannot be meaningfully translated into the unveiled world: Rational men and women in the original position deprived of all particular knowledge of their social standing and cultural understanding would probably opt, as Rawls has argued, for an equal distribution of whatever goods they were told they needed. But this formula doesn't help very much in determining what choices people will make, or what choices they should make, once they know who and where they are. In a world of particular cultures, competing conceptions of the good, scarce resources, elusive and expansive needs, there isn't going to be a single formula, universally applicable. There isn't going to be a single, universally approved path that carries us from a notion like, say, 'fair shares' to a comprehensive list of the goods to which that notion applies. Fair shares of what?90

Walzer begins to answer the question, "Fair shares of what?", by explicitly rejecting Rawls' contention that certain social resources are equally useful irrespective of one's particular conception of the "good". Walzer makes the forceful point that the meaning of even apparently basic social resources are symbolically constructed within particular social contexts: Bread is the staff of life, the body of Christ, the symbol of the Sabbath, the means of hospitality, and so on... If the religious uses of bread were to conflict with its nutritional uses - if the gods demanded that bread be

M. Walzer, Spheres of Justice: A defense of pluralism and equality (New York: Basic Books, 1983). 90 Ibid, at 79 (emphasis added). 9 Ibid, at 8. Rawls suggested that some social resources are "primary goods", which he defined as "things that every man is presumed to want. These goods normally have a use whatever a person's rational plan of life." Rawls, TOJ, supra note 35 at 62. 35

baked and burned rather than eaten - it is by no means clear which use would be primary.

Given this plurality of contested understandings of social resources, Walzer argues that individuals behind a Rawlsian veil of ignorance would be unable to determine how social resources ought to be distributed unless they could somehow first come to an agreement about how those resources should be understood. To return to Walzer's example, the parties to the original position cannot determine how bread ought to be distributed until they know whether bread should be understood as a nutritional substance or as a means of assuring salvation. Such understandings, however, are contingent on an individual's conception of the "good", and these (contested) conceptions are inaccessible to the parties in Rawls' original position.

On these grounds Walzer rejects theories of justice that aim to come up with a single fair distributive principle in isolation from the social contexts in which social resources get their meanings. Instead, he propose a theory of "complex equality" that is, in his view, more appropriate to circumstances of normative pluralism. This theory attempts to secure - rather than to overcome - the plurality of distributive principles that are tied to contingent understandings of particular social resources in specific social spheres.93

According to Walzer's theory of complex equality, an unequal distribution of particular social resources within a given social sphere (i.e. "simple inequality") is not necessarily problematic, so long as the distribution is appropriate to that particular sphere. Thus, for example, there is nothing wrong with a literary society according a large number of literary awards to a small subset of especially accomplished authors. That is to say, "fair shares" of literary awards should not be taken to mean "equal shares" of literary awards, because in many social contexts the notion of an award carries a non-egalitarian distributive logic (e.g. literary awards should be given in recognition of literary excellence).

Walzer, supra note 89 at 8. Ibid, at 3-30. For an interesting discussion of awards and prizes, see Ibid, at 264-266. 36

Although, for Walzer, simple inequality within a particular sphere is not necessarily a cause for concern, such inequality becomes problematic if the unequal distribution of social resources in one sphere spills over into other spheres whose distributive principles are unrelated. In such circumstances, the distributive logic of one sphere is, to use Walzer's terminology, "dominating" or "tyrannizing" the other spheres. Walzer formally articulates the prohibition of domination or tyranny in his theory of complex equality as follows: "No social good x should be distributed to men and women who possess some other good y merely because they possess y and without regard to the meaning of x."96 This principle would be violated, for example, if a literary society accorded what purports to be a literary award on the basis of the political connections, wealth, or family relations of an author. Distributing literary awards on such grounds would allow the distributive logics appropriate to other social spheres, such as politics, the economy, or the family, to tyrannize the literary society by interfering with the distributive logic of its literary awards.

To protect social spheres from domination or tyranny, Walzer's theory of complex equality proposes several tools to reinforce the boundaries between social spheres. Examples he cites include: prohibitions against political interference in religious institutions (and the inverse); limits on political patronage, bribery and the purchase of public offices;9 unions that counteract the bargaining power of wealthy employers;99 legal aid programs; and, effective social welfare services, including a universal publicly financed medical care system.101 All these tools aim to protect normative pluralism, to protect the autonomy of social spheres with distinct normative commitments against the aggressive incursion of other social spheres.

Ibid, at 10-20. Ibid, at 20. Ibid, at 245-247 & 283-284. Ibid, at 100-101. Ibid, at 121. 0 Ibid, at 85. 1 Ibid, at 86-91. 37

In my view, the most appealing feature of Walzer's theory of complex equality is that it has room for multiple dimensions in social relations. It takes seriously the competing normative claims that emerge different social spheres including religious institutions, workplaces, families, clubs, universities, professional orders, and so on. It rejects the notion of a single yardstick with which to compare social resources for the purposes of establishing a general distributive principle. It insists such a single yardstick would not only be reductive, but would also inevitably entail a kind of tyranny, a dominance of one feature of social life over all the other aspects of our complex social landscapes.

It is, therefore, profoundly ironic that when Walzer turns his attention to the question of boundaries around communities, he accepts - and, in fact, largely embraces - the domination of one aspect of human life over all social spheres: membership in a political community.102

Walzer, like Rawls, situates his discussion of complex equality within the bounds of national political communities. Walzer's reason for doing so relates to his understanding of the contextually embedded meanings of social resources. According to Walzer, it is only within national political communities (i.e. step-1) that people share sufficient common understandings about the meanings of social resources to engage in intelligible conversations about how those social resources ought to be distributed (i.e. step-2). As he puts it, The political community is probably the closest we can come to a world of common meanings. Language, history, and culture come together (come more closely together here than anywhere else) to produce a collective consciousness. National character, conceived as a fixed and permanent mental set, is obviously a myth; but the sharing of sensibilities and intuitions among the members of a historical community is a fact of life.104

For an excellent discussion of Walzer's analysis of the boundaries around membership within communities, see L. Bosniak, The Citizen and the Alien (Princeton: Princeton U.P., 2006), at 40-49. 103 Walzer, supra note 89 at 28-30. mIbid. at 29. 38

Interestingly, after contending that meaningful discussions of complex equality can only be located within national political communities, Walzer goes on to explicitly acknowledge that membership in these national political communities will necessarily be a dominating social resource that spills over into all other spheres: the primary good that we distribute to one another is membership in some human community. And what we do with regard to membership structures all our other distributive choices: it determines with whom we make those choices, for whom we require obedience and collect taxes, to whom we allocate goods and services.105

Although Walzer asserts that distributions of membership in a particular community structures all other distributive choices, he does not argue that it is impossible to meaningfully discuss the fairness of distributions of membership on the grounds that bounded communities are prior to justice. To the contrary, Walzer is among the few prominent liberal thinkers who offer a sophisticated analysis of justice in the context of disputes over the boundaries around political communities. Indeed, Linda Bosniak goes so far as to suggest that one of Walzer's primary contributions to political theory is that his analysis requires us to think seriously about the "legitimate scope, or jurisdiction, of what [he] has called the membership sphere."

According to Walzer, membership within a community, like other social resources, has a meaning that must be fixed within communities. In the Walzerian framework, because the existing members of a community determine the social meaning of membership, they also determine the logic appropriate to the distribution of membership: We who are already members [determine membership criteria], in accordance with our own understanding of what membership means in our community and what sort of community we want to have. Membership as a social good is constituted by our understanding; its value is fixed by our work and conversation; and then we are in charge (who else could be in charge?) of its distribution.108

Ibid, at 31. Ibid, at 31-63. Bosniak, supra note 102 at 49. Walzer, supra note 89 at 32. 39

The alternatives Walzer sees to acknowledging that communities have the right to determine their own membership criteria are rather stark: We might opt for a world without particular meanings and without political communities: where no one was a member or where everyone 'belonged' to a single global state...If all human beings were strangers to one another...then there would be no membership to distribute. Admissions policy would never be an issue... If, by contrast, all human beings were members of a global state, membership would already have been distributed equally; and there would be nothing more to do.

Obviously Walzer does not put forward either of these two options seriously. With respect to the first option, he contends that if states were to stop policing borders to keep out unwanted non-members, smaller communities would band together to protect the local culture against incursions.110 As a result, "[t]o tear down the walls of the state is not...to create a world without walls, bur rather to create a thousand petty fortresses."1" Moreover, the consequences of adopting the second option are, for Walzer, even more dismal: The fortresses, too, could be torn down: all that is necessary is a global state sufficiently powerful to overwhelm the local communities. Then the result would be... a world of radically deracinated men and women. Neighborhoods might maintain some cohesive culture for a generation or two on a voluntary basis, but people would move in, people would move out; soon the cohesion would be gone.

In short, closure around national communities is, according to Walzer, essential for the preservation of normative pluralism, that is to say, for the preservation of the social spheres that give human lives their multiple and contested meanings. As a result, for Walzer - like for Rawls and Dauvergne - the issue of the distribution of membership in a community is exceptional: The distribution of membership is not pervasively subject to the constraints of justice. Across a considerable range of the decisions that are made, states are simply free to take in strangers (or not) - much as they are free ... to share their wealth with foreign friends, to honor the achievements of foreign artists, scholars, and scientists, to choose their trading partners, and to enter into collective security arrangements with foreign states. But the right to choose an admission policy is more basic

110 Ibid, at 38. 111 Ibid, at 39. 112 Ibid, at 39. 40

than any of these for it is not merely a matter of acting in the world, exercising sovereignty, and pursuing national interests. At stake here is the shape of the community that acts in the world, exercises sovereignty, and so on. Admission and exclusion are at the core of communal independence. They suggest the deepest meaning of self-determination. Without them, there could not be communities of character, historically stable, ongoing associations of men and women with some special commitment to one another and some special sense of their common life.113

In spite of the importance Walzer accords to allowing national communities to establish their own membership criteria in order to provide the closure necessary for normative pluralism, he nonetheless maintains that some membership criteria are illegitimate. His argument in this regard turns heavily on the role of territory in political life: the link between people and land is a crucial feature of national identity.... Moreover...because so many critical issues (including issues of distributive justice, such as welfare, education, and so on) can best be resolved within geographical units, the focus of political life can never be established elsewhere. I4

Because political life is, for Walzer, necessarily territorially organized, the key distributive principle for membership in the political community is that, at a minimum, membership must be extended to all those who live within a particular territory. Otherwise, some individuals will be unable to access the primary social good of membership in a political community, and will, as a result, be excluded from all the distributions of social resources embedded in the various social spheres that make up political communities. In Walzer's terms, if membership is restricted to anything less than all persons who live within a particular territory, then the political life on that territory "is a form of tyranny. Indeed, the rule of citizens over non-citizens, of members over strangers, is probably the most common form of tyranny in human history." On this basis, Walzer objects to racially delimited membership policies such as those found under the Apartheid regime. 6 He also objects to "guestworker" programs, where non- citizens may spend the bulk of their lives living and working in a community in which

113 Ibid, at 62-62 (emphasis added; italics in original). 114 Ibid, at 44 (emphasis added). 115 Ibid, at 62. U6Ibid. at 62-63. they are not entitled to the benefits of full membership.117 Putting these objections in more general terms, Walzer asserts that, "the process of self determination though which a democratic state shapes its internal life, must be open, and equally open, to all those men and women who live within its territory, work in the local economy, and are subject to local law." Taken together, Walzer's theory of membership is, to borrow Linda Bosniak's terminology, "hard outside, soft inside". That is to say, while national communities are free to adopt harsh border control policies that exclude unwanted non- members, these policies may not permanently exclude actual long-term resident non- members from membership. They may not, in other words, create a permanent subclass that is subject to the tyranny of the members of the community.

Walzer's reasoning here is, unfortunately, difficult to square with his basic contention that social resources acquire their meaning within particular social settings. Although he argues that territory is the necessary location of political life, it is not clear how he would respond to those who assert that their community understands the relation between territory and political life differently. One can easily imagine communities that see territory as a relatively unimportant site of political life. Global religious communities with complex political institutions, for instance, may see territory as less central to their understanding of political life than, say, faith. Similarly, members of migrant diaspora communities may build and inhabit transnational political landscapes that are partly unhinged from territory. ' Modem technology has even made it possible to conceive of communities in which the political lives of members are organized in virtual rather than physical spaces, where territory as Walzer understands it is simply irrelevant. One can

117 Ibid, at 56-61. m Ibid, at 60. Bonsinak, supra note 102 at 124-126. For a discussion of transnational religious communities, see generally, S. Rudolph & J. Piscatori (eds.), Transnational Religion and Fading States (Boulder, CO: Westview P., 1997). 121 Transnational migration network theorists highlight this phenomenon. See generally, S. Ong, Buddha is Hiding: Refugees, Citizenship & the New America (Los Angeles: U. Calif. P., 2003); A. Portes, et al, "Immigrant Transnational Organizations and Development: A Comparative Study" (2007) 41 Int'l Migration Rev. 242. 1 For a discussion of deterritorialized communities formed over the Internet, see generally, S. Turkle, Life on the Screen: Identity in the age of the Internet (New York: Simon & Schuster, 1995). 42

also imagine communities that understand territory as an important social resource, but one that is only capable of serving as a centre of political life for certain groups of people. Suppose, for instance, a community understands territory as a home given by God to a chosen people, or as a living being of which a particular group of people forms an integral component.124

Such alternative understandings of the role of territory as an organizing principle of political life are hardly a hypothetical matter. Indeed, proponents of Apartheid and racial slavery often explicitly contested the notion that territory - rather than race - was 1 9S the appropriate basis for organizing the political life of a national community. Consider, for example, the following comments made in the South African Assembly in 1949: The government and the state of South Africa are regarded as serving but one aim, the self-preservation and the advancement of the white people who elected the government and who form a nation, which is an organization with a nature and character of its own...with an individual destiny to fulfil.126

In my view, any theory of justice worthy of the name must have a response to such arguments. In the end, Walzer must explain why his step-1 choices (i.e. all human

Several Biblical passages appear to offer such an understanding of land accorded to the "descendants" of Abraham. See e.g., Genesis 15:18-21; Numbers 34:1-15; Exodus 23:31; Deuteronomy 1:6-8. The relationship between indigenous peoples and land is often framed in such terms. See, generally, J. Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: U. Toronto P., 2003). I 9 S In the case of Apartheid, the relation between race and territory in governance is complex, and I do not have the space to fully articulate that relation here. However, generally speaking, the long-term aim of Apartheid was to establish territory in which whites would govern themselves apart from other races. Other races would then, in principle, be entitled to self-governance in other territories (with vastly more limited resources). Territory was thus a tool through which to actualize a racially organized political life. It is in this sense that I mean that race, rather than territory, was seen as the appropriate organizing principle for political life by proponents of Apartheid. For interesting discussions of the role of territory in Apartheid see: A. Lester, et al, "Space, Place and Identity: Historical geographies of Southern Africa" 29:3 Journal of South African Studies 595; A. Bouillion, "Transitions et logiques territoriales en afrique du sud: races, (im)migrations, territories et reseaux" (1999) 29:2 Espace geographique 111. 126 Strydom quoted in K. Roskam, Apartheid and Discrimination (Amsterdam: Leyden, A.W. Sythoff, 1960) at 134. 43 beings who live within a given territory) are preferable to other step-1 choices (e.g. all members of a community that is not defined in exclusively territorial terms). It is not clear, however, how he can do so without deploying the very kind of extra-cultural assertion about the meaning of social resources - and in particular the meaning of territory and political life - that his theory of complex equality aims of avoid.

This tension in Walzer's understanding of membership criteria is also visible in the writings of other contemporary liberal thinkers who argue in favour of relatively closed borders around self-determining national communities while simultaneously contending that certain types of restrictions on membership within communities violate basic liberal principles. One particularly interesting example of this phenomenon is the work Seyla Benhabib.

1.3.6. Seyla Benhabib: (Bounded) Democratic Iterations

In The Rights of Others, Benhabib examines the borders around communities from the perspective of liberal deliberative democratic theory.1 7 Generally speaking, deliberative democratic theory holds that an institutional framework is legitimate when those affected by the institution could reasonably be persuaded to be bound by it.128 The step-1 of deliberative democracy thus, in principle, includes all those who are affected by a particular institution. As Benhabib puts it: [e]very person, and every moral agent who has interests and whom my actions and the consequences of my actions can impact and affect in some manner or another, is potentially a moral-conversation partner with me: I have a moral obligation to justify my actions with reasons to this individual or to the representatives of this being.

S. Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge U.P., 2004). 1 TO For a comprehensive introduction to discourse theory, see J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans, by W. Rehg (Cambridge: MIT P., 1996). Benhabib, supra note 127 at 14. The inclusion of "or the representatives of this being" in the above passage carries significant implications. In particular, the possibility of representation means that it would be inaccurate to characterize Benhabib's theory of deliberative democracy as giving priority to community (i.e. the deliberative community) over justice. In fact, one need not be a member of the deliberative community in order to 44

According to Benhabib, the processes through which liberal communities articulate their boundaries pose a "paradox" for theories of deliberative democracy. On the one hand, most deliberative democrats agree that boundaries around polities are necessary in order to establish manageable forums in which people can engage in the types of ongoing democratic deliberations that allow for self-governance.130 On the other hand, those who are excluded from democratic polities generally have no input into the norms by which their inclusion or exclusion is determined, a scenario that appears to violate the basic principle of deliberative democracy, namely that those who are affected by a norm are entitled to participate in its articulation.13

In Benhabib's view, many of the liberal thinkers who explore this "paradox" unhelpfully adopt one of either two extreme positions. The first extreme - which parallels the argument made by Joseph Carens - holds that virtually all criteria of exclusion are unjust because they involve norms that apply to those who are not party to their formulation. This extreme leads to mandatory open borders, which Benhabib, like Walzer, rejects on the grounds that it would imperil the very existence of political institutions within which democratic deliberations can take place. The other extreme Benhabib wishes to distance herself from is the view - articulated by thinkers such as

have one's interest taken into account within representative deliberative democratic procedures. To quote Benhabib at length: On first reading the theory seems to exclude from moral agency and moral representation those who are not capable of full speech and action. Depending on how strongly 'the capacity for speech and action' is defined, many beings whom we would want to recognize as moral agents and as moral victims, such as very young children, the differently abled, and the mentally ill, would seem to be excluded from the moral conversation. Furthermore, there may be beings to whom we owe moral obligations and who may become moral victims by virtue of being impacted by our actions but who cannot represent themselves: sentient beings capable of pain, such as animals with developed nervous systems and, some would argue, even trees and ecosystems, are alive and can be affected by our actions... [T]he moral interests of beings who are not full participants in moral discourses ought to be and can be effectively represented in discursive contexts through systems of moral advocacy (Ibid, at 14). m Ibid, at 15 & 220. m Ibid, at 15. m Ibid, at 14. 45

Rawls and Dauvergne - that boundaries around communities are arbitrary historical facts that are pre-conditions for liberal democratic discourses. On this view, liberal theory does not, and in fact cannot, inquire into the legitimacy of the boundaries around

• • 134 communities.

Benhabib attempts to carve out a middle ground between these two extreme positions. She argues that we can never entirely get around the "paradox" of membership criteria; membership criteria will always affect those who have little say in the articulation of these criteria. We can, however, require communities articulating such criteria to engage in self-reflexive discussions that periodically reassess and modify their exclusionary practices. The aim of such discussions, which Benhabib calls "democratic iterations", is to destabilize or denaturalize existing exclusions. In Benhabib's terms, "we can render the distinctions between 'citizens' and 'aliens,' 'us' and 'them,' fluid and negotiable through democratic iterations."135

Behabib's suggestion regarding destabilizing - but not eliminating - membership determinations tracks closely the work of several feminist thinkers who examine exclusions from communities. One exchange between Chantal Mouffe and Judith Butler offers a particularly clear example of how arguments regarding destabilized exclusions work. According to Mouffe, an advocate of radical democracy: One has to acknowledge that a fully inclusive political community can never be realized. There will always be a "constitutive outside," an exterior to the community that is the very condition of its existence. Once it is accepted that there cannot be a "we" without a "them" and that all forms of consensus are by necessity based on acts of exclusion, the question cannot be any more the creation of a fully inclusive community where antagonism, division, and conflict will have disappeared.136

As Rawls puts it, "An important role of a people's government, however arbitrary a society's boundaries may appear from a historical point of view, is to be the representative and effective agent of a people as they take responsibility for their territory and its environmental integrity, as well as for the size of their population." Rawls, Law, supra note 46 at 38-39 (emphasis added). " Benhabib, supra note 127 at 15. 135 Ibid, at 21. 136 C. Mouffe, "Feminism, Citizenship and Radical Politics" in J. Butler & J. Scott (eds.), Feminists Theorize the Political (New York: Routledge, 1992) 369 at 379. 46

Butler responds to Mouffe's argument about the "constitutive outside" using a language that is very similar to the language Benhabib employs: "[Mouffe argues that] the very domain of politics constitutes itself through the production and naturalization of the "pre-" or "non" political. In Derridean terms, this is the "constitutive outside." Here I would like to suggest a distinction between the constitution of a political field that produces and naturalizes that constitutive outside and a political field that produces and renders contingent the specific parameters of that constitutive outside."137

In The Rights of Others Benhabib reviews several controversies over membership in affluent states in order to highlight how these controversies have the potential to enhance the fluidity of membership - to render exclusions from the community contingent - through "democratic iterations". These controversies result from the fact that within any contemporary pluralist state one can find many resident non-members as well as many individuals who enjoy formal membership but who remain substantively excluded from many of the benefits of membership.

One particularly interesting example Benhabib considers is the increasingly common practice in Europe of according the right to vote in municipal elections to non- nationals. c Another example is the noisy debate about religious symbols (especially the hijab) in public spaces in states such as France. Using these and other public debates that raise issues of membership in democratic communities, Benhabib argues that in membership in contemporary pluralist societies is complex and increasingly disaggregated: "These cases show that outsiders are not at the borders of the polity, but within. In fact the very binarism between nationals and foreigners, citizens and migrants, is sociologically inadequate and the reality is much more fluid." In other words, membership cannot, contra Walzer, be understood as merely a matter of residence within state territory:

137 J. Butler, "Contingent Foundations: Feminism and the Question of'Postmodernism'" in J. Butler & J. Scott (eds.), Feminists Theorize the Political (New York: Routledge, 1992) 3 at 20 (emphasis added). 138 Benhabib, supra note 127 at 129-212. 139 Ibid, at 182-183. 140 Ibid, at 183-198. 141 Ibid, at 210. 47

There has never been a perfect overlap between the circle of those who stand under the law's authority and the full members of the demos. Every democratic demos has disenfranchised some, while recognizing only certain individuals as full members. Territorial sovereignty and democratic voice have never matched completely. Yet presence within a circumscribed territory, and in particular continuing residence within it, brings one under the authority of the sovereign - whether democratic or not. The new politics of membership is about negotiating this complex relationship between the rights of full membership, democratic voice, and territorial residence.1

Benhabib's aim in reviewing contemporary controversies over the complex relationship between membership, democracy, and territory is to encourage "democratic iterations" that problematize - but not simply erase - existing exclusions. According to Benhabib, these controversies hint at an alternative to cosmopolitan calls for open borders on the one hand and the entrenchment of closed democratic communities on the other hand. This alternative is to be found not in either the entrenchment or the end of citizenship, but rather in its disaggregation and complexification. As such, Benhabib advocates not "open but rather porous borders."

What is interesting about Benhabib's approach is that it partially inverses the logic of the two-step of liberal philosophy. It insists that through ongoing "democratic iterations" about justice (step-2) we can continually reshape the boundaries around political communities (step-1). While these "democratic iterations" take places within existing political communities, they do not presume settled boundaries around those communities, but instead aim to constantly interrogate and challenge those boundaries.

I say Benhabib partially inverses the logic of the two step, however, because in her bid to forge a middle ground between the basic normative principle of deliberative democracy and the need for communities to carve out delimited spaces in which to conduct their democratic politics, she carefully sets up the "democratic iterations" about membership in a manner that minimizes the degree to which these two principles conflict. Two examples of the way in which she minimizes these conflicts bear emphasizing. First, she suggests that although democratic communities may justly regulate their membership

Ibid, at 20. Ibid, at 221. 48

and admissions policies, such regulation must, at a minimum, accord with a right to first admittance for asylum seekers. Second, she contends that democratic deliberations cannot accommodate discrimination that would permanently deny certain groups of persons access to either immigration or citizenship on the basis of ascriptive features of their identity such as religion, race, ethnicity, and gender. Let us take a close look at each of these two points in turn.

Firstly with respect to the right of first admittance of asylum seekers, it is unclear whether Benhabib appreciates the radical and sharply contested implications of such a right. In one of the more troubling passages in the book, Benhabib states: [Significant developments in international law point in the direction of the decriminalization of migratory movements, whether these be caused by the search for refuge or asylum, or by immigration proper.144

Unfortunately, Benhabib fails to substantiate this assertion with any citation to the relevant developments mentioned. This is particularly troubling because as those working in migration law in western states over the past decades would attest, the trend seems to be entirely in the other direction.145 All liberal affluent states adopt strategies to control movement across their borders by criminalizing unwanted migration, the most concerted of these efforts being directed precisely against asylum seekers. The most common strategy is to establish visa requirements, whereby any country which is perceived to be likely to generate flows of refugee claimants is added to a list of countries whose citizens must request a visa while abroad in order to successfully seek admission at the border. Of course, any visa applicant who is suspected of intending to make a refugee claim on arrival is denied a visa. The state then imposes penalties on transportation companies that provide passage to individuals without the relevant visas, imposes criminal sanctions on those who assist asylum seekers in circumventing the combined visa requirement/carrier sanctions program, and establishes complex enforcement and surveillance mechanisms to give effect to such programs, mechanisms which often include the use of military force. The result is that most asylum seekers in liberal affluent states arrive at their destination

l"lbid. at 68. See generally M. Miller, "The 2002 Randolph W. Thrower Symposium — Immigration Law: Assessing New Immigration Enforcement Strategies and the Criminalization of Migration: Introduction" (2002) 51 Emory L.J. 963. 49 through criminal misrepresentation in visa applications, with or without the assistance of a criminal human smuggling network that procures false documents and that can also provide irregular transportation.146

Of course, there is nothing wrong with asserting that these common contemporary practices with respect to the criminalization of asylum seeking cannot be justified within a theory of deliberative democracy. To the contrary, I feel that we should discard any theory that does not object to such underhanded strategies used to avoid incurring obligations under the 1951 UN Convention Relating to the Status of Refugees. However, it is important to acknowledge that actual respect for the right of first asylum that Benhabib locates in deliberative democratic principles would impose substantial burdens on liberal affluent states - burdens that states, by criminalizing asylum seeking, have indicated that they are simply unwilling to accept. In such a context Benhabib must offer alternatives regarding how to proceed. How ought the theory of deliberative democracy respond to this reality of long-standing and intractable injustice? What are the sites and strategies that can best challenge such injustice? Failing to ask these questions, and worse, failing to acknowledge the scope of the problem being confronted, risks leaving the theory largely irrelevant to those asylum seekers with whom Benhabib claims to be concerned.

The second major way in which Benhabib minimizes the conflict between the basic principles of deliberative democracy in the migration setting is by arguing that

For a full discussion of these and other means that states use to prevent asylum seekers from reaching the territory of affluent liberal states, see below, Chapter II, Section 2.3. See also, A. Brouwer & J. Kumin, "Interception and Asylum: When Migration Control and Human Rights Collide" (2003) 21:4 Refuge 6; M. Jimenez, "Tighter Security Cited in Refugee-Claims Decline" The Globe and Mail (12 Aug 2004) A8. For a discussion of similar programs around the world, see B. Christian, "Visa Policy, Inspection and Exit Controls: Transatlantic Perspectives on Migration Management" (1999) 14 Geo. Immig. L.J. 215; J. Fitzpatrick, "Revitalizing the 1951 Refugee Convention" (1996) 9 Harv. Hum. Rts. J. 229 (see especially at 237); J. Howard, "To Deter and Deny: Australia and the Interdiction of Asylum Seekers" (2003) 21:4 Refuge 35; N. Coleman, "Non- Refoulement Revised: Renewed Review of the Status of the Principle of Non- Refoulement as Customary International Law" (2003) 5 Eur. J. Migr. & L. 23; A. Sianni, "Interception Practices in Europe and their Implications" (2003) 21:4 Refuge 25; and UN HCR, 2000, 18th Mtg., UN Doc. EC/50/SC/CRP.17. 147 28 July 1951, 189 U.N.T.S. 137. 50

when "democratic iterations" regarding membership occur, certain types of exclusion, including those based on race, religion, and ethnicity, must always be seen as impermissible. Such exclusions are impermissible under democratic deliberative theory to the extent that they impinge upon the communicative freedom of those who are excluded: [CJlearly, reasons that barred you from membership because of the kind of being that you were, your ascriptive and non-elective attributes such as your race, gender, religion, ethnicity, language community, or sexuality, would not be permissible, because I would then be reducing your capacity to exercise communicative freedom to those characteristics which were given to you by chance or accident and which you did not choose. ... However, criteria that stipulate that you must show certain qualifications, skills, and resources to become a member are permissible because they do 1 4R not deny your communicative freedom.

Thus, although some exclusions from citizenship are clearly impermissible, Benhabib sees nothing wrong, in principle, with "democratic iterations" that establish point-system programs to screen potential immigrants with respect to their potential contribution to the community, such as the program currently in place in Canada.149 Now, let us set aside for the moment that "qualifications, skills, and resources" could quite easily be recast as socio-economic class (and its attendant complex intersections with gender, race, and able-bodiedness, etc.), a status that is for the vast majority of the world more ascriptive than the presumptions embedded in the above passage would have it. We should leave this objection aside because of a deeper problem in Benhabib's analysis: the outcome of the "democratic iterations" seems to hinge on the kind of question being deliberated.

If, for example, instead of having a conversation about the justifiable bases on which new potential members may be screened for admittance to my community, we were to inquire into why I have a claim to membership while you do not (i.e. what makes

148 Benhabib, supra note 127 at 138-139. Immigration and Refugee Protection Regulations, S.O.R./2002-227, ss. 73-85. The point system screens out the vast majority of those who might be interested in migrating to Canada, as in order to obtain the minimum pass mark a potential skilled immigrant must generally demonstrate fluency in English and/or French, a minimum of a Master's degree level of education, and several years of work experience in a limited number of highly skilled professions. For an excellent review of the point system, see C. Dauvergne, "Evaluating Canada's New Immigration and Refugee Protection Act in Its Global Context" (2003) 41 Alta L. Rev. 725. it my community and not yours? what gives me the authority to make the determination about exclusion and not you?), the discussion would proceed along rather different lines. Such democratic deliberations would quickly have to confront the reality that the vast majority of citizens of liberal affluent states have a claim to citizenship on the basis of place of birth. In such a context, the status that entitles me to participate in conversations about whether you - who do not enjoy similar status - can continue to be justly excluded, is itself distributed on the basis of an ascriptive social characteristic. Does not such a starting place for our conversation already violate "the communicative freedom of human beings qua human beings"?150

Let us take a parallel example. Suppose a state were to establish a two-track citizenship system. In such a system all people belonging to one race would receive automatic citizenship. Those of another race would be able to apply for citizenship on the basis of clearly articulated qualifications and skills that will assure those who already enjoy citizenship that the inclusion of these particular persons belonging to the other race will work to the advantage of existing citizens. If all we discuss in our "democratic iterations" is whether the particular criteria that apply to the second track to citizenship can be justified, then some liberal theories may well conclude that such a system is acceptable. If, however, we discuss the existence of the two-track system to begin with, then the practice would be viewed as highly problematic.

Of course, there may be important differences between race and place of birth. It is important to acknowledge, however, that the starting point for our conversations about the rights of "others" in Benhabib's analysis are communities in which membership is accorded for the most part on the basis of place of birth. Any democratic discourse theory that is troubled by distributions of life chances according to ascriptive social characteristics must confront and defend such a starting point when it queries the ways democracies treat those they construct as "others." In other words, democratic polities do not just encounter "others". Rather it is through a series of liberal democratic institutions that the "we" and the "others" are constructed as such.

Benhabib, supra note 127 at 139. 52

Here then is how Benhabib replicates (while partially inversing) the two-step of liberal philosophy: like Walzer she privileges existing territorially organized national political communities where the vast majority of citizens enjoy citizenship as a birthright privilege as the sites in which discussions about the rights of "insiders" and "outsiders" occur. Her version of the two-step allows step-2 discussions to problematize step-1 exclusions from democratic communities; however, she nonetheless presumes that bounded state-based polities are the legitimate places in which these step-2 discussions occur. Yet it is difficult, given her claims regarding the disaggregation of membership, to understand why this is the appropriate starting place. Why should membership policies be determined within state-based "democratic iterations", as opposed to other types of conversations about justice that might oucur in institutional settings that are partly deterritorialized? Indeed, one would think that if Benhabib's claims regarding the disaggregation of membership that she sees as being evident in contemporary political controversies are accurate, then the appropriate places to engage in "democratic iterations" that are corrosive to naturalized exclusions are those sites where, to use Benhabib's language, it is most obvious that "the other is not elsewhere."15 That is to say, "democratic iterations" regarding membership should occur in sites that do not adopt the same "us" / "them" distinctions as those at play at the level of the democratic polity. Examples of such sites would include what Walzer calls the "social spheres": neighborhoods, workplaces, families, faith-based communities, universities, diaspora communities. To the extent that the boundaries of these social spheres sometimes spill across state boundaries, an individual who is an "other" for the purposes of state-based "democratic iterations" may already be an "insider" for the purposes of discussions about justice within the social spheres that partly constitute the state-based community. It would seem that a plurality of "democratic iterations" about membership in these social spheres would be especially well suited to denaturalizing or gradually corroding exclusions. Unfortunately, however, because Benhabib begins her analysis with democratic iterations about justice and membership at the level of the state, her approach fails to entirely inverse the two-step of liberal philosophy. Rather, her step-2 "democratic iterations" about justice and membership that occur at the state level will be less corrosive to restrictive membership policies - less likely to produce a "porous" step-1 -

151 Ibid, at 87. than similar "democratic iterations" that occur in a plurality of social spheres, each with its own distinct step-1. The result is that policies that would violate deliberative democratic if they applied to citizens will continue to be viewed as acceptable if they are applicable only to non-citizens. In other words, the result is that border control continues to be an exceptional subject - although less of an exceptional subject than it is for Rawls, Walzer and Dauvergne.

1.4. Conclusion

My brief review of contemporary liberal thinking about border control has explored the links between what I have called the two-step of liberal philosophy and the exceptional understanding of border control adopted by many liberal thinkers. I have argued that the two-step of liberal philosophy leads many theorists to assert that regular liberal principles of justice do not apply with their full force to questions regarding the boundaries around political communities, including questions about border control. While some liberals challenge this exceptional understanding of border control and criticize restrictive border control policies in contemporary affluent states for violating basic liberal principles, they too tend to embrace two-step reasoning. As such, the basic disagreement between liberal critics of closed borders and liberals who advocate closed borders tends to come down to a dispute about the proper scope of the bounded community assumed to be relevant for liberal theories of justice: open borders liberals generally presume that the starting point for liberal theories of justice is a community that includes all human beings, whereas closed borders liberals generally begin with bounded geo-political communities that include only citizens (or sometimes all long-term residents). As we have seen, these divergent assumptions among liberals about the appropriate bounded community (step-1) that serves as a starting point for discussions of liberal justice (step-2) leads some thinkers to go so far as to assert that liberalism is simply incapable of offering normative guidance about border control controversies.

Though I expressed skepticism about such sweeping claims regarding the inability of liberalism to offer guidance in the border control setting, 1 am nonetheless troubled by the inattention of many liberals to the role of two-step reasoning in justifying departures 54

from standard liberal principles in the border control setting. In particular, I feel that it would that assist liberals in thinking further about the appropriateness of exceptional understandings of border control if the two-step could be reversed, if, that is to say, discussions of liberal principles of justice (step-2) were deployed to interrogate liberal assumptions about boundaries around communities (step-1). It seems to me that two particularly promising sites for reversing two-step reasoning can be found in the work of the liberal theorists that I reviewed in this chapter.

The first is in the work of Michael Walzer - which is perhaps somewhat ironic, given that Walzer is one of the most prominent liberal defenders of closed borders. Recall that according to Walzer contemporary pluralist societies are made up of many distinct social spheres, each with its own distributive logic. When the boundaries between the social spheres are preserved, a form of complex equality emerges. Under conditions of complex equality, individuals who enjoy advantages in one social sphere will not automatically be advantaged in other social spheres operating according to alternative distributive logics and vice versa. In contrast, tyranny occurs when complex equality is undermined because the distributive logic of one sphere interferes with the distribution of social goods in another sphere. Under circumstances of tyranny, individuals with access to social resources from one sphere are able to use those resources to gain advantages in other social spheres where resources should be distributed according to other principles. With respect to border control policy, Walzer concedes that the distribution of membership (i.e. citizenship) in a territorially organized political community currently structures the distribution of all social goods in all social spheres within political communities. In Walzer's framework, this would normally be considered a form of tyranny. Walzer, however, does not see a viable alternative to a world in which the primary social good to be distributed is citizenship in a territorially organized political community. Moreover, he argues that the very existence of a plurality of social spheres is contingent on closure around territorially organized political communities. As a result, according to Walzer, considerations of complex equality are only relevant within territorially bounded political communities (step-1), and thus the restrictive border control polices that constitute those communities are not a form of tyrany (step-2). In my view, however, a more persuasive reading of the Walzerian framework would be to refuse to accept that the primary social good to be distributed is citizenship in a particular territorially organized community. Under an adapted Walzerian understanding of complex equality, one in which citizenship in a political community is just one social good among many, while citizenship may legitimately affect the distribution of some social resources, there would be other social resources in other social spheres whose distributive logics ought to be independent of the distribution of citizenship. Where citizenship interferences with those independent distributive logics, such interference would properly be understood as tyranny. Of course, we would need to know much more about when social goods in a particular social sphere ought be distributed in a manner that is independent of citizenship in the territorially organized political community - an issue that, for obvious reasons, Walzer does not pursue. The point remains, however, that by disaggregating the question of just distributions of social resources in pluralist communities, Walzer's approach hints at an intriguing possibility: rather than assessing the distribution of social resources against a single distributive principle that is appropriate for all social goods within a single bounded political community (one step-1 leading to one step-2), Walzer's framework opens up the possibility that the distribution of each social good in distinct social spheres carries not only its own distributive principle (its own step-2), but also its own appropriately delimited boundaries (its own step-1). Such a disaggregated approach to the two-step of liberal philosophy would allow for evaluations of liberal justice with regard to border control that would be more nuanced than possible under existing two-step reasoning. In particular, such an approach offers a way out of the all or nothing scenario according to which restrictive border control policies are either perfectly compatible with liberal principles of justice (assuming that liberal principles of justice are applicable only to relations among citizens) or entirely incompatible with liberal principles of justice (assuming that liberal principles of justice are applicable to relations among all human beings, irrespective of citizenship). Instead of proceeding on the basis of such assumptions, evaluations of justice in the context of border control under an adapted Walzerian framework would inquire into which specific social resources ought to be distributed on the basis of citizenship, and which ought to be distributed on the basis of other distributive principles. 56

The second promising site for locating an alternative to existing two-step reasoning is in the work of Seyla Benhabib. Recall that Benhabib is interested in the "paradox" that that membership criteria poses for theorists of deliberative democracy. Democratic institutions require rules about who is entitled to participate in these institutions. Generally speaking, only existing members of the polity are entitled to participate in the democratic institutions that make determinations about who is entitled to participate - about who, that is to say, counts as a member of the democratic polity. Such determinations thus seem undemocratic, in the sense that they impact non-members who are not entitled to participate in the decision-making process. Rather than simply concluding that limits on membership are therefore impermissible according to deliberative democratic theory, Benhabib resorts to an interesting sociological observation: actual social relations in contemporary pluralist societies are not structured entirely through norms of membership in the polity, because in such societies the "other" is no longer "elsewhere". Many members of a given society have important personal, economic and social ties to non-members of their polity. Moreover, many non-members live on a long-term basis on the territory of a given polity, participating in some - though not all - of the important economic, social and political institutions of that polity. Finally, many individuals may nominally be members of the society but may lack the ability to access the full benefits of membership, whereas other individuals may enjoy most of the benefits of membership without actually being members. This reality of multifaceted interactions between members and non-members of a polity adds a layer of complexity to debates about membership undertaken within democratic institutions. In Benhabib's view, complex debates within democratic institutions about just relations between members and non-members of a polity - democratic "iterations", as she calls them - can incrementally shift the boundaries around membership in the polity, leading not to open borders, but to "porous" borders, in which exclusions from membership are presented as problematic, contingent and political, rather than unproblematic, permanent and natural. To put Benhabib's point in the terms of the two-step of liberal philosophy, complex step- 2 discussions in pluralist contemporary democracies can ultimately serve to shift - although not erase - the boundaries around the step-1 democratic community. Though Benhabib's work shows some promise of reversing the two-step of liberal philosophy, ultimately, Benhabib - like most other two-stepping liberal philosophers - privileges the state as the site in which membership criteria must be debated and determined. As we saw, this approach ultimately leads her to be far less critical of birthright citizenship than she otherwise might be. Such an approach is surprising, however, given her views on the complex sociological reality of relations between members and non-members of democratic polities. In particular, she never explains why it is appropriate to privilege the state-defined "us'V'other" distinctions over definitions that might occur in other social spheres that are partly constitutive of pluralist democratic states. To borrow Walzer's terminology, she never explains why it is appropriate that the state-based distribution of the social resource of citizenship should be allowed to "tyrannize" the distribution of social goods in other social spheres.

All of this to say, then, the two-step of liberal philosophy makes it difficult to assess arguments about justice in the border control setting, leading many liberals to argue that border control is an exceptional subject, and leading some to suggest that liberal principles of justice have little - or even nothing - to say about border control controversies. The work of both Walzer and Benhabib shows some promise of offering alternatives to conventional two-step reasoning. These alternatives draw on the rich pluralism found in contemporary liberal societies to add a level of complexity to debates about justice and the boundaries around political communities. Unfortunately, both Walzer and Benhabib ultimately ground their analyses in bounded liberal states as the appropriate site for debates about border control controversies. In my view, however, they nonetheless offer helpful analytic tools - particularly Walzer's notion of tyranny and Benhabib's notion that democratic iterations can incrementally enhance the porosity of the boundaries around pluralist communities - through which we can challenge the two- step of liberal philosophy, and possibly, the exceptional understanding of border control it engenders.

The remainder of my dissertation will now attempt to argue that legal scholars can contribute to further developing the potential I see in the work of Walzer and Benhabib for drawing on the pluralism found in contemporary liberal societies to articulate a more 58

satisfying alternative to existing two-step reasoning in debates about justice and border control among liberals. Just as the present chapter has sought to explore how several prominent liberals come to view border control as exceptional, Chapter II will examine how the legal systems of liberal states actively maintain border control as a legally exceptional area law. In particular, I use the insights of legal geographers to demonstrate that contemporary border control practices in major destination states aim not so much at controlling the movement of persons across peripheral state lines but rather at maintaining the ability of states to regulate interactions between citizens and non-citizens in a manner that departs from the human rights and due process norms that animate liberal legal systems. Chapter III then uses the work of Lon Fuller to highlight what is problematic from the perspective of legal theory about the interactions structured by contemporary border control practices: these interactions involve one-way projections of authority that violate principles that are constitutive of what he terms "legality". Chapter IV next explores an example of a social sphere - faith based communities that offer sanctuary to non-citizens facing deportation - which draws upon legal pluralism to challenge particularly egregious violations of legality by liberal states in the border control setting. Finally, the concluding chapter, Chapter V, examines how a sophisticated understanding of the technologies of contemporary border control law, the conception of legality articulated by Lon Fuller, and the example of a legal pluralist challenge to violations of legality in the border control setting can, in combination with the work of Walzer and Benhabib, point us towards an alterative to conventional two-step reasoning within liberal discussions about justice and border control.

Let us, then, proceed to an examination of the legal geography border control. CHAPTER II; THE LEGAL GEOGRAPHY OF BORDER CONTROL

In the language of immigration, the condition of being "outside" contains multiple layers of meaning. [...] At the most physical level, "outside" refers to a potential entrant's physical location beyond the territorial domain of the state. On a more abstract plain, domestic immigration laws recognize that an individual can be physically present in a state and remain "outside" in legal terms. Finally, it is possible for an individual to be within the jurisdictional control of the state and remain "outside" the zone of juridical responsibility.

- J. Morris1

A messy cartography cannot but lead to messy practices. - B. de Sousa Santos2

2.1. Introduction

Much like the way that liberal political philosophers tend to view border control as a subject for which standard liberal principles do not apply with their full force, the liberal legal systems of major migration destination states treat border control as exceptional areas of law. This chapter, drawing on the insights of legal geographers, explores how states maintain border control as an area of law in which standard human rights norms - particularly due process norms - are seriously attenuated within otherwise liberal legal systems. In particular, the chapter explores the links posited within these legal systems between state sovereignty and control over migration across peripheral lines demarcating the territorial inside/outside of a legal order. It is on the basis of these links that liberal legal systems in major destination states treat border control activities as occurring in moments where migrants are literally outside or prior to the regular laws, including human rights norms, that inhere in the legal order. I argue, however, that this understanding of border control as aspiring to police movement across peripheral

1 J. Morris, "The Spaces in Between: American and Australian interdiction policies and their implications for the refugee protection regime" (2003) 21(4) Refuge 51 [Morris, "In-Between"] 2 B. de Sousa Santos, "Beyond Abyssal Thinking : From Global Lines to Ecologies of Knowledges" in Eurozine (29 Jun 2007), online: http://www.eurozine.com/articles/2007- 06-29-santos-en.html (accessed: 10 Oct 2007) at 6.

59 60

territorial lines that demark the inside/outside of a state's legal order can no longer be sustained in the face of contemporary border control practices. Rather, I argue that these practices indicate that states actively manipulate the locations of border control - either literally or notionally - in order to regulate relations between citizens and non-citizens in a manner that departs from standard human rights norms that inhere in liberal legal systems. As a result, rather than thinking of border control law as aiming to police the moment in which non-citizens seek to cross from the outside to the inside of state territory, I suggest that we instead think about border control law as a series of legal strategies that states deploy to maintain their ability to act upon non-citizens in a manner that is legally exceptional.

The chapter will begin by examining how legal geographers understand borders in the contemporary world. Next, my analysis will move on to consider a number of legal strategies through which liberal affluent states actively manipulate the sites of their border control activities in order to locate these activities in sites imagined to be outside or prior to law. These practices reflect two central tendencies: (1) non-entree strategies through which states prevent unwanted migrants from reaching the official border; and, (2) legal fictions designed to insulate the state from the demanding presence of unwanted migrants who manage to circumvent the non-entree strategies. My investigation into non- entree strategies will chronicle the proliferation of programs designed to intercept and turn away would-be-migrants prior to their arrival at the "border". Visa requirements, carrier penalties, the placement of immigration officials in foreign points of transit, coordination with source country officials who seek to prevent emigration, and military interception on the high seas, are some of the more common programs to which I will point. I will then argue that these practices are best understood as attempts not to police movement across territorial borders, but rather to articulate new notional boundaries around the legal order. As such, 1 will argue that these programs are similar to the shocking legal fiction deployed by the Australian government to excise parts of the Australian territory for the purposes of migration law. Such legal fictions are designed to allow states to deal with particular classes of unwanted non-citizens as though they were interdicted prior to crossing the traditional peripheral borders - that is to say, as though they are not "present" within the territorial legal order. Taken together, what I hope to 61 demonstrate is that through these processes state borders are redrawn around particular classes of persons, turning them into outlaws, non-status persons, undocumented persons and, of course, illegal aliens. These practices, I will suggest, are oriented not primarily towards keeping unwanted migrants out of destination state territory. Instead, they aim principally to regulate relations between citizens and particular types of non-citizens in moments that are legally exceptional, that is to say, where "law" operates as an instrument of top-down social control, as rules acting upon - rather than interacting with - unwanted migrants.

Let us begin, then, by considering what legal geographers have to say about how borders work in the contemporary world.

2.2. Legal Geography & Borders

The modern image of the border is literally that of a place where colours change on geo political maps. In a world of spatially organized states, borders mark "rigidly defined territorial units in which each state can gain power only at the expense of the others and each has total control over its own territory."3 In such a world, borders are peripheral lines that delimit the inside / outside of sovereign state territory.

Because of the central role of borders in how contemporary states are imagined, discretionary executive power over who may cross state borders has long been understood to be a constitutive feature of state sovereignty. Indeed, no less a figure than Vattel, in his seminal text on international law, first published in 1758, put this point in stark terms: One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what

3 J. Agnew, "Mapping Political Power Beyond State Boundaries: Territory, Identity, and Movement in World Politics" (1999) 28 Millennium 499 at 504. 4 See generally, A. Kesby, "The Shifting and Multiple Border and International Law" (2007) 27 Oxford Journal of Legal Studies 101; W. Walters, "Border/Control" (2006) 9 European Journal of Social Theory 187; M. Neocleous, Imagining the State (Maidenhead: Open University Press, 2003). 62

conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien.5

Courts have repeatedly endorsed Vattel's view that executive discretionary authority over the exclusion of non-citizens is a fundamental attribute of sovereignty. For example, in the leading case establishing that Canada's federal government has the constitutional authority to deport aliens, the Judicial Committee of the Privy Council held that, as it is conceded that by the law of nations the supreme power in every State has the right to make laws for the exclusion or expulsion of aliens, and to enforce those laws, it necessarily follows that the State has the power to do those things which must be done in the very act of expulsion, if the right to expel is to be exercised effectively at all.6

The Judicial Committee of the Privy Council went on to note that sovereign power over excluding unwanted aliens from entering state territory at the border and the power to expulse unwanted aliens present on sovereign territory are closely related: The power of expulsion is in truth but the complement of the power of exclusion. If entry may be prohibited it would seem to follow that the Government which has the power to exclude should have the power to expel the alien who enters in opposition to its laws.7

Similar reasoning is evident in American case law. For example, in an early immigration law decision, the US Supreme Court stated: It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self- preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.

Then, in a case upholding the constitutionality of legislation authorization the deportation of long-term US residents of Chinese origin, the Supreme Court noted the connection between exclusion at the border and expulsion from state territory: The government of each state has always the right to compel foreigners who are found within its territory to go away, by having them taken to the

5 E. de Vattel, Law of Nations (Philadelphia: T. & J. W. Johnson, 1854) book 1, s.231 Attorney General for Canada v. Cain, [1906] A.C. 542 at ^|5 (JCPC). 7 Ibid, at 17. 8 Nishimura Ekiu v. United States, 142 U.S. 651 (1891) at 659. 63

frontier. This right is based on the fact that, the foreigner not making part of the nation, his individual reception into the territory is matter of pure permission, of simple tolerance, and creates no obligation.9

It is evident, then, that in both Canada and the United States, there is a • longstanding connection between the way that courts perceive borders as the markers of the limits of state territory, and the way absolute discretion over the deportation of non- citizens is understood to be a constitutive attribute of state sovereignty.

Curiously, however, this connection did not receive serious attention from legal scholars until rather recently. This is somewhat surprising considering that scholars in a number of other disciplines have been interested in similar issues for several decades. As far back as the 1970s, Foucault famously argued that more attention should be accorded to the spatial specificity of different forms of power: A whole history remains to be written of spaces - which would at the same time be the history of powers (both these terms in the plural) - from the great strategies of geopolitics to the little tactics of the habitat... passing via economic and political installations.

11 19 In response, scholars in a wide range of fields - including architecture, geography, and literary theory, to name only a few examples - took up Foucault's call to investigate the history of spaces and the spatiality of different forms of power. The

9 Fong Yue Ting v. United States, 149 U.S. 698 (1893) at 708. 10 M. Foucault, "The Eye of Power" in M. Foucault, ed., Power / Knowledge (New York: Pantheon, 1980) at 149. See also, Michel Foucault, "Space, Knowledge and Power" in P. Rabinow, ed., The Foucault Reader (New York: Pantheon, 1984) 239. See also, M. Foucault, "Of Other Spaces" (1986) Diacritics 22. 11 D. Stewart, "Why Foucault" (1980) 121 Architecture & Urbanism 100; G. Wright, "Spatialization of power: a discussion of the work of Michel Foucault" (1982, Spring) Skyline 14; P. Hirst, "Foucault and Architecture" (1993) 26 AA Files 44. For a review of how Foucault has influenced contemporary architectural thought see G. Wright, "Cultural history: Europeans, Americans, and the meanings of space" (2005) 64 Journal of the Society of Architectural Historians 436. See e.g. E. Soja, Postmodern Geographies: The Reassertion of Space in Critical Social Theory (London: Verso, 1989); C. Philo, "Foucault's Geography" (1992) 10 Environment & Planning D: Society and Space 137. For an excellent overview of the engagement with Foucault by geographers, see J. Crampton & S. Elden, eds., Space, Knowledge and Power: Foucault and Geography (London: Ashgate, 2007). E. Said, Orientalism (New York: Pantheon Books, 1978); S. During, Foucault and literature: towards a genealogy of writing (New York: Routeledge, 1992). 64

substantial body of literature that resulted has been widely influential in putting the question of space and spatiality front and centre in much contemporary scholarship.

Unfortunately, legal scholars' efforts in this regard have lagged far behind. In spite of the proliferation of the so-called "law-ands" in the Anglo-American legal academy (e.g. law and society, law and anthropology, law and literature), one combination was, for too long, conspicuous in its absence: law and geography.14 In fact, it wasn't until the late-1990s, through the work of scholars such as Blomely,15 Ford16 and 1 7 Forest, that legal geography emerged as a discipline investigating the "spatialities of law and the legalities of spaces."18

With the emergence of legal geography as a discipline, however, scholars have increasingly explored questions relating to how spaces - and in particular bounded spaces - structure human relations. This scholarship has highlighted the extent to which, in the modern world, human relations are mediated through territorial identities, in much the same way that such relations were once negotiated in Europe through feudal status. As Richard Ford, a prominent legal geographer, puts it: Territorial identities developed and matured along with the advance of modern, scientific cartography. Once cartography made the production of precisely demarcated legal territories possible, territorial relationships quickly became dominant. The territorialization of social relations served important institutional purposes more effectively than did the older status relationships. Hence the famous historical shift from status to contract was accompanied by an equally significant shift from status to locus.

D. Delaney, "Semantic Ecology and Lexical Violence: Nature at the Limits of Law" (2001) 5 Law Text Culture 77 at 79. N. Blomley, Law, Space and Geographies of Power (New York: Guilford, 1994). 16 R. Ford, "The Boundaries of Race: Political Geography in Legal Analysis" (1994) 107 Harv. L.R. 1841. I 7 B. Forest, "Placing the Law in Geography" (2000) 28 Historical Geography 5. 18 Delaney, supra note 14 at 83. Ibid.; Walters, supra note 4; Kesby, supra note 4; K. Parker, "From Poor Law to Immigration Law: Changing Visions of Territorial Community in Antebellum Massachusetts" (2000) 28 Historical Geography 61; M. Dudziak, "Legal Borderlands: Law and the Construction of American Borders" (2005) 57 American Quarterly 593; A. White, "Geographies of asylum, legal knowledge and legal practice" (2002) 21 Political Geography 1055. 20 R. Ford, "Law's Territory (A History of Jurisdiction)" (1998) 97 Mich. L. Rev 843 [Ford, "Jurisdiction"]. 65

Etienne Balibar echoes Ford's conclusions regarding territory's work in constructing social and political identities: To 'territorialize' means to assign 'identities' for collective structures of power, therefore to categorialize and individualize human beings (and the figure of the 'citizen' with its statutory conditions of birth and place, its different sub-categories, spheres of activity, processes of formation, is exactly a way of categorizing individuals).21

Building on these and other insights regarding the importance of territory in mediating human relations, legal geographers have explored the mutually constitutive relations between law and territorial borders. More specifically, they have begun to pay close attention to the way that lines on maps are drawn to reflect ongoing legal practices, as well as the way that legal practices reflect - or even manipulate - lines drawn on maps. Ford describes this circular phenomenon in the following terms: [T]he lines between various nations, cities and districts... are real, but they are real because they are constantly being made real, by county assessors levying property taxes, by police pounding the beat (and stopping at the city limits), by registrars of voters checking identification for proof of residence. Without these practices the lines would not 'be real' - the lines don't preexist the practice.22

Perhaps an example will be of assistance in seeing what Ford means by the idea that ongoing legal practices make borders "real." Consider the Canada-US international boundary. When one thinks of this border, the images that tend to come to mind are those of major land ports of entry, with long lines of cars and trucks waiting for customs clearance. In such locations one encounters the typical technologies of border control surveillance. These include vaguely intimidating customs officials, high fences, bright lights, video cameras, x-ray and gamma-ray systems, biometric technologies, drug sniffing dogs and the like. It is by resort to such technologies of surveillance that the Canada-US border is operationalized. In Ford's terms, they make the border "real".

7 I ' E. Balibar, cited in Kesby, supra note 4 at 10. 22 Ford, "Jurisdiction", supra note 4 at 856 (emphasis added). For an interesting review of some of the technology employed at Canada-US border crossings see Canadian Border Services Agency, Contraband Detection (26 January 2007) online: http://cbsa-asfc.gc.ca/security-securite/detect/menu-eng.html (accessed: 27 February 2007). 66

It is important to keep in mind, however, that for these technologies of surveillance to effectively operationalize the Canada-US, the border must already be "real", at least in the minds of the majority of those policing and crossing the border. Moreover, this reality cannot - and should not - be taken for granted. It is common in many North American indigenous communities, for example, to find assertions about the unreality or irrelevance of the Canada-US boundary. As Thomas King, a renowned indigenous author, puts it, "the border doesn't mean that much to the majority of Native people in either country. It is, after all, a figment of someone else's imagination." Not surprisingly, such an attitude - particularly when displayed by indigenous communities whose territory straddles the US-Canada border - fuels anxiety on the part of those responsible for policing the officially imagined border. As a result of these anxieties, cross-border aboriginal communities have come to be seen by some as sites posing heightened security risks related to smuggling,25 and even as sites posing deep symbolic challenges to state sovereignty.

It is, then, not merely the presence of technologies of surveillance that is the main distinguishing feature of land ports of entry. Rather it is the fact that most of us (though by no means all of us) choose to submit to customs inspections in such locations rather than passing across adjoining national parks, waterways, agricultural land or unguarded roads. This is a significant point because most of these adjoining sites, which represent

T. King, The Truth About Stories: A native narrative (Toronto: Anansi Press, 2003) 102. King offers a particularly vivid account of the contingency of this imagined border in his remarkable short story about a Blackfoot woman who successfully erases the Canada-US border simply by refusing to accept the terms of a customs inspection. T. King, "Borders" in T. King, ed., One Good Story, that One (Toronto: Harper Collins, 1993) 129. See e.g. Public Safety and Emergency Preparedness Canada, "International Indigenous Cross Border Security Summit", online:http://www.psepc.gc.ca/prg/le/bs/iicbss-en.asp (accessed: 27 Feb 2007). 26 See e.g. Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33 (per Major and Binnie JJ) (holding that an asserted aboriginal right of a cross-border aboriginal community to transport goods across the Canada-US border without paying customs duties is fundamentally incompatible with Canadian state sovereignty). 67 the vast majority of the locations along the official international boundary, remain largely unpatrolled.

To consider just one example, some of my fondest memories as an adolescent are drawn from hiking trips in Waterton Lakes National Park, a park located at the intersection between Alberta, British Columbia, Montana and the Blackfeet Indian Reservation. In many places along backcountry trails the actual location of the international boundary(-ies) was unmarked, and one did not always know in whose territory one happened to be hiking. Along the shorter and more frequented trails there were border markers. Sometimes faded signs accompanied these markers, requesting that those on cross-border hikes report to customs authorities on their arrival at the nearest town - though for all the time I spent in the park I had never actually seen anyone fulfill this request.

It has been some time since I have been back to Waterton, and with the increasingly loud national security discourses in both the US and Canada, it is quite possible that these trails are more actively patrolled by customs officials.29 The point remains, however, that what distinguishes land points of entry from other places along international dividing lines is the heightened level of surveillance in these locations. Moreover, it is not merely the existence of technologies of surveillance that is the distinguishing feature, but the fact that most of us - though not all of us - submit to rituals of surveillance in these sites.

Customs Excise Union, Secure Border Action Plan (November 2006), online: http://www.ceuda.psac.com/english/publications/reports/Other/SBAP.pdf (accessed: 27 Feb 2007) at 27-34; US Government Accountability Office, Border Security: Security Vulnerabilities at Unmanned and Unmonitored U.S. Border Locations (September 2007), online: http://www.gao.gov (accessed 27 Sept 2007). For an interesting history of the area see: G. MacDonald, Where the Mountains Meet the Prairies: a history of Waterton County (Calgary: U. Calgary P., 2000). The current maps provided by Parks Canada, however, continue to read: "Hikers / persons traveling overnight in the U.S.A... must report to customs: USA - Goat Haunt Ranger Station." Online: http://arkscanada.pch.gc.ca/pn- np/ab/waterton/visit/visitlb_e.asp (accessed: 19 July 2005). In considering the likelihood of compliance with this requirement to report, it is worth noting that this station is several kilometers out of the way for most backcountry overnight hikers. 68

This, then, is the first main insight that I want to draw from legal geography. For border control in ports of entry to function effectively, it is essential that most border crossers take seriously the legal obligations imposed by the regimes that are territorially delimited by the border. Otherwise, no one would report to the official border crossings. In other words, the technologies of surveillance that make the borders "real" are only effective because - for most border crossers, at least - the borders are already "real". That is to say, borders and border control practices are mutually constitutive: the existence of the border makes border control surveillance practices work, but, at the same time, it is the surveillance practices that make the border exist.

The second feature of borders that I want to consider from the perspective of legal geography relates to how we might try to locate state borders. This question is rather more complicated than it would at first appear. If, however, as legal geographers contend, borders and border control surveillance practices are mutually constitutive, then one way to locate the border is to ask where border control surveillance occurs.

As we have seen, border control activities are seldom dispersed equally along a state's territorial periphery. Instead, a significant proportion of border control surveillance is concentrated in nodal sites, known as ports of entry. Historically, ports of entry were located near the physical frontiers of a state. Notice, however, that even if they were located near international boundaries - either boundaries with neighbouring states or with the high seas - they remained within state territory. In the usual course of events, then, by the time people interacted with customs officials, they had already crossed into the territory of the state into which they were seeking permission to enter, even if only by a short distance.

In the 20n century, however, border control became partly dislodged from its traditional sites near the territorial peripheries of states. This occurred through the advent of commercial air transportation. As it would be decidedly impractical to require all incoming international flights to land near the physical border for customs inspections

G. Goodwin-Gill, The Refugee in International Law (Oxford: Oxford University Press, 1983) at 75 [Goodwin-Gill, Refugee]. before proceeding to their destination, commercial air transportation required the establishment of major ports of entry at inland international airports. The result is that, today, even though they may be located hundreds of kilometres from the nearest international boundary, airports customs halls are key sites for making borders "real". Indeed, the surveillance that occurs in such sites is virtually indistinguishable from that which occurs in land ports of entry.31

The reason I emphasize this straightforward point is because the actual locations of the sites of border control surveillance carry important legal implications. Indeed, perhaps the most controversial Supreme Court of Canada decision on refugee law in the past twenty-five years, Singh v. Canada ("Singh'") turned precisely on this point.

Singh involved several unsuccessful refugee claimants who, in the context of applications for judicial review of their negative refugee claim determinations, challenged the then-existing refugee determination procedure. The refugee determination process in Canada at the time was complex and involved several layers. The process began with claimants recounting their fears of persecution during an interview with an Immigration Officer. Members of a specialized body, the Refugee Status Advisory Committee, then evaluated transcripts of those interviews against their knowledge of "world affairs" and on that basis made a recommendation as to whether the Minister should accord refugee protection. The Minister would then decide whether, in fact, to accord refugee protection. That decision was then subject to appeal to another body, the Immigration Appeal Board. Before proceeding with a hearing on an appeal, however, the Immigration Appeal Board was required to examine the transcript of the claimant's interview, as well as written declarations as to the evidence that the claimant proposed to introduce at the hearing. Only if, in the opinion of the Immigration Appeal Board, the

1 While airport customs halls mimic land ports of entry, airports themselves are arguably structured so as to reflect social relations mediated through networks rather than through territory. See e.g. M. Aaltola, "The International Airport: the hub-and-spoke pedagogy of the American empire" (2005) 5 Global Networks 261. 32 [1985] 1 S.C.R. Ill [Singh]. 70

claimant would, on the balance of probabilities, be able to successfully establish their qualification for refugee protection would the matter proceed to a hearing.

The applicants contended that this complex refugee determination process violated their right to life, liberty and security of the person protected under the s. 7 of the Canadian Charter of Rights and Freedoms {"Charter"). The substance of their complaint was that the procedure did not provide claimants with "a fair opportunity to

-5 C present their refugee status claims or to know the case they had to meet." Because, however, a number of the applicants had initially made their refugee claims at Canadian ports of entry, before the Court could assess whether the refugee determination procedure conformed with s.7 of the Charter, the Court was required to determine whether the Charter applied to non-citizens in ports of entry.

In answering this question in the affirmative, the Court engaged in a straightforward reading of the text of the Charter. Section 32(1 )(a) of the Charter states: "This Charter applies... to the Parliament and government of Canada in respect of all matters within the authority of Parliament." Because immigration is one of the enumerated powers accorded to Parliament under s. 91(25) of the Constitution Act, 1867, the Court held that, generally speaking, exercises of "authority" by the Federal

"Ibid, at 12-33. 34 Being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982 (U.K.) 1982, c. 11. Singh, supra note 32 at *\ 33. 36 In fact, Singh was split 3-3, with judgments concurring in the result, but on separate grounds. The decision based on the Charter argument to which I am referring is that of Dickson C.J., Wilson and Lamer JJ. The decision by Beetz, Estey and Mclntyre JJ, on the other hand, disposed of the case on the grounds of a conflict between the Immigration Act and s. 2(e) of the Canadian Bill of Rights, R.S.C. 1970, App. III. As such, it did not engage in a Charter analysis. Dickson C.J., Wilson and Lamer JJ.'s decision has been subsequently cited with approval as establishing the principle that the Charter in general, and s. 7 in particular apply to refugee claimants physically present in Canada. Suresh v. Canada, [2002] 1 S.C.R. 3 at 6 [Suresh]; R. v. Terry, [1996] 2 S.C.R. 207 at 216. See also, P. Hogg, Constitutional Law of Canada, Student Ed. (Toronto: Thomson-Carswell, 2004) at 753. 37 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5. 71 government over immigration matters are, pursuant to s. 32(1 )(a), subject to the Charter.

The next step in the Court's analysis was to determine whether refugee claimants in ports of entry in particular, to the extent that they are subject to Federal authority over immigration law, are entitled to s.7 rights. Again, the Court proceeds by way of simple textual analysis. Section 7 of the Charter reads: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The Court notes that s. 7 uses more inclusive language than a number of other sections of the Charter, notably ss. 3 and 6, which provide rights only to "citizens" or "citizens and permanent residents". As a result, the Court adopts a generous reading of the term "Everyone" as it is used in s. 7, and holds that: "Everyone" is sufficiently broad to include the appellants in its compass [...] [T]he term includes every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.41

This last aspect of the Singh decision generated quite a bit of controversy because many object to the principle that all persons physically present in Canada, regardless of their citizenship or immigration status, are entitled to s.7 rights by their mere presence on Canadian territory, even if only at a port of entry located on Canadian territory. Much

Singh, supra note 32 at 1} 34. Emphasis added. Section 3 states: Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. Section 6(2) reads: Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. Singh, supra note 32 at f 35, emphasis added. See e.g. E. Oziewick, "Manning plays down immigration policy Reform Party literature - advocates harsher restrictions" in The [Toronto] Globe & Mail (July 15, 1991) ("Mr. Manning [, the leader of the Reform Party of Canada,] said the Charter's 72

of this controversy proceeds on the mistaken belief that the holding affords a whole series of procedural protections to refugee claimants, including rights to appeal negative decisions, with many asserting that the judgment, by extending such rights to refugee claimants, has placed undue constraints on the refugee determination system, leading to increased delays and costs.44 In fact, while Singh was initially heralded as momentous by advocates for refugees,45 subsequent case law significantly limited the possible scope of Charter protections enjoyed by non-citizens, including refugee claimants, in the context of immigration law.46

override (notwithstanding) clause should be invoked to get around a 1985 ruling of the Supreme Court of Canada, known as the Singh decision"). J. Simpson, "The 'fundamental justice' that swallowed a minister" in The [Toronto] Globe & Mail (18 January 2005) ("The court, in the first blush of Charter enthusiasm, grabbed this word "everyone" and ruled that anyone who set a toe in Canada — whether or not they had a legal right to be here — was deserving of Charter protection. And that meant "fundamental justice," which, in turn, required oral hearings, representation by counsel, appeals to courts and immigration ministers"). In fact, the Singh decision does not refer to any procedural rights other than the right to an oral hearing in certain limited circumstances. See e.g. J. Simpson, "The Supreme Court has gummed up the refugee process" in The [Toronto] Globe & Mail (13 February 1997) A22 ("The so-called Singh decision [...] gummed up a reasonably effective system by extending protection under the Charter of Rights and Freedoms to "everyone" who put a foot on Canadian soil and by insisting that "everyone" was entitled to a full oral hearing"); M. Jimenez, "Volpe promises to revamp refugee process" in The [Toronto] Globe & Mail (19 April 2005) A5 ("Immigration Minister Joe Volpe promised yesterday to revise Canada's beleaguered refugee process [...] Mr. Volpe emphasized there is no 'silver bullet' to fix the system, noting that he is constrained by a 1985 Supreme Court of Canada decision that all refugee claimants have rights under the Charter of Rights and Freedoms and are entitled to oral hearings"). J. Grey, "Comment on Singh v. Minister of Employment an Immigration" (1986) 31 McGill L.J. 496 at 506 ("Singh is a major step forward in immigration law, human rights law and administrative law"). But see M. Gold, "Constitutional Scholarship in Canada" (1985) 23 Osgoode Hall L.J. 495 at 513 ("In the long run, the impact of the Singh case on immigration law is likely to be minimal"). See e.g. Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 [Chiarelli] (holding that the deportation of long term permanent residents who commit crimes is constitutionally valid); Nguyen v. Canada (Minister of Employment & Immigration) (1993), 18 Imm. L.R. (2d) 165 (Fed. C.A.) leave to appeal refused (1993), 20 Imm. L.R. (2d) 245 (S.C.C.) (holding that denying access to the refugee determination system to those with serious criminal convictions is constitutionally valid); Dehghani v. Canada (Minister of Employment & Immigration) (1993),T8 Imm. L.R. (2d) 245 (S.C.C.) (holding that persons have no right to counsel at port-of-entry examinations). See also generally, A. Macklin, "Borderline Security" in Borderline Security", in R. Daniels et al. (eds.), The Security of Freedom: Essays on 73

The main impetus behind the limitations on the scope of protections offered to non-citizens by Singh is a central tenet of border control law in the common law world: "mere" deportation does not engage protections of liberty interests. As the Supreme Court of Canada has recently reiterated: The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada [...] Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7 of the Canadian Charter of Rights and Freedoms.

Or, put in somewhat starker terms by Audrey Macklin: Put bluntly, deporting a non-citizen does not in and of itself breach principles of fundamental justice, no matter how long the person has lived in Canada, what she would leave behind, and what awaits her (short of persecution as interpreted within the refugee definition) upon arrival in the country of nationality.

Thus, it is only where there is something more than "mere" deportation at stake - a threat of torture or other significant mistreatment on return, for example - that deportation will be understood to "implicate" liberty and security interests.

There is much more that could be profitably said about this narrow reading of the s.7 rights of non-citizens, but, for the time being, what I want us to take away from my discussion of the Singh decision - a decision with similarly controversial counterparts in other jurisdictions5 - is that there are important consequences to the simple fact that the

Canada's Anti-Terrorism Bill (Toronto: U of T Press, 2001) 383 at 394 [Macklin, "Borderline"] ("While it is technically true that most Charter rights apply to all persons physically in Canada, in practice the courts have sharply circumscribed the nature and extent of those rights for non-citizens faced with removal"). Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at f46. 48 A. Macklin, "The State of Law's Borders and the Law of States' Borders" in D. Dyzenhaus (ed.), The Unity of Public Law (Oxford: Hart Publishing, 2004) 173 at 188. See e.g. Suresh, supra note 36 (holding that deportation to face torture engages s.7 protections); United States v. Burns, [2001] 1 S.C.R. 283 (holding that extradition to face the death penalty engages s.7 protections). 50 See e.g. Zadvydas v. Davis, 533 U.S. 678 (2001) at 693 ("the Due Process Clause applies to all "persons' within the United States, including aliens, whether their presence 74

painted red or yellow lines found in front of border control officials in airport customs halls, as well as land and marine ports of entry, are not indicative of the territorial border. Indeed, as we shall now see, states have begun to intentionally move these markers - these sites of enhanced surveillance - to locations outside the territory of the state in question. They do so precisely in order to circumvent rights claims (however limited they may be) that result from the disjunction at the heart of the Singh decision between the locations of the sites of surveillance that most of us think of when we think of the border and the territorial peripheral lines of the state.

2.3. Drawing outside the lines: Non-Entree Strategies

During the past several years, the notion that the borders of liberal affluent states are under siege and out of control has become something of a popular refrain. A recent report commissioned by the Secretary General of the United Nations, and prepared by the Global Commission on International Migration, describes this popular sentiment in characteristically diplomatic terms as follows: In many societies, citizens are expressing concerns, both legitimate and unfounded, about the arrival of people from other countries and cultures. Media outlets across the world report a constant stream of stories related to migrants and migration, many of them focusing on the more sensational and negative aspects of the issue. Migration has proved to be a politically explosive issue in a significant number of countries, to the extent that it

here is lawful, unlawful, temporary, or permanent"); Minister of Home Affairs and Others v. Watchenuka and Another, 2004 (2) BCLR 120; 2003 SACLR LEXIS 67 (SCA of South Africa) ("Human dignity has no nationality. It is inherent in all people - citizens and non-citizens alike - simply because they are human. And while that person happens to be in this country - for whatever reason - it must be respected, and is protected, by section 10 of the Bill of Rights"). 51 M. Jimenez, "Broken Gates: Canada's welcome mat frayed and unraveling" in The [Toronto] Globe and Mail (16 April 2005) A8 "(Polls show that Canadians still overwhelmingly support immigration but have begun to question Ottawa's ability to manage it"); "Immigration is under control, the politics of immigration is a different matter" in The Economist (9 April 2005) 81 ("[UK Tory Party Leader], Michael Howard's pitch is simple: immigration is out of control."); T. Weiner, "On these Shores, Immigrants Find a New Wave of Hostility" in The New York Times (13 June 1993) 41 ('"The sense of siege has been a very good vehicle for the anti-immigration people,' said Demetrios Papademetriou, director of immigration policy at the Labor Department from 1988 to 1992. 'Their message resonates around the country: Immigration is out of control; our borders have fallen'"). 75

seems to have played an important role in determining the outcome of several elections.52

While the Global Commission on International Migration's description of these popular concerns regarding migration is left at a general level, there is, in fact, a specific group of migrants that is most often associated with the language of out of control borders, particularly outside the United States:53 asylum seekers.54 The popular preoccupation with asylum seekers, particularly those who arrive by boat,55 is due, in large part, to three simple sets of facts.

Global Commission on International Migration, Migration in an Interconnected World: New Directions for Action (2005) (online: www.gcim.org') (accessed: October 20, 2005) [GCIM, Report]. The United States is somewhat peculiar in this regard as the US out of control borders discourse has drawn more heavily on: (1) national security issues; and, (2) irregular economically induced migration across the US-Mexico border. See, e.g., "Terrorism and Immigration" (Editorial) in The New York Times (October 5, 2001) 26 ("The fact that most of the terrorists in the Sept. 11 attack, if not all, entered the country legally should not blind Congress to the need to block illegal entries by increasing security along its porous borders with Mexico and Canada"); P. Brimelow, Alien Nation: Common sense about America's immigration disaster (New York: Random House, 1995) at 208 ("The political form of the Estados Unidos Mexicanos is essentially that of the United States of America. But the content is Mexican"). See generally A. Macklin, "Disappearing Refugees" (2005) 36 Columbia Human Rights Law Review 101 at 103 ("Most states deplore the arrival of asylum seekers") [Macklin, "Disappearing Refugees"]; "The 2002 Randolph W. Thrower Symposium - Immigration Law: Assessing New Immigration Enforcement Strategies and the Criminalization of Migration"(2002) 51 Emory L.J 963. See also, "Fugitive Claimants Undermine Immigration", Editorial in The [Montreal] Gazette (8 May 2008) ("thanks to our overly permissive refugee policies... there's no way Immigration Canada... can keep up with the hordes of claimants"). 55 See e.g. my discussion of the M.V. Tampa Incident in Section 2.4. This preoccupation with migration by sea is not a new phenomenon. Canada, in particular, has a distressing history with respect to turning away those who would now be called asylum seekers who attempt to come to Canada by sea. Consider, for instance, that Canada (like the US and Cuba) turned away the 907 German Jews on board the St. Louis in the incident later referred to as the Voyage of the Dammed, many of whom perished in Nazi concentration camps. See generally G. Thomas & M. Morgan-Witts, The Voyage of the Dammed (Loughborough, England: Motorbooks International, 1994). Or consider the infamous Komagata Maru, whose 300 some Punjabi passengers were greeted in British Columbia with headlines that read "Hindu Invasion", and who were forcibly returned to Calcutta, whereupon many were killed by local police. See generally H. Johnston, The voyage of the Komagata Maru: the Sikh challenge to Canada's colour bar (Oxford: Oxford U.P., 1979). Or note that when three ships filled with asylum seekers from China arrived on Canada's west coast in 1999, they were met with a large font front page headline that 76

The first set of facts is that successful refugee claimants in affluent liberal states are generally entitled to remain permanently in the host state, enjoying most of the rights accorded to citizens, and ultimately the right to become full citizens if they meet certain conditions.56 They are, moreover, generally also able to assist at least some of their family members in relocating to the host state.57 In this context, it is significant that

read: "Aliens Go Home!" See e.g. "Go Home" in The [Victoria] Times Colonist (August 15, 1999) 1. Finally, see my discussion of Canada's interdiction of a boat filled with Sri Lankan asylum seekers off the coast of Africa, at notes 149-154 (and accompanying text). What is curious about this scenario is that the preoccupation with arrivals by boat is entirely disproportionate to the number of persons arriving by such means - far more refugee claimants arrive by plane, and yet such arrivals do not seem to stir up the same level of popular resentment. 56 Immigration and Refugee Protection Act, 2001, c. 27, s 21(2) [IRPA] (according Canadian permanent residence to successful refugee claimants); 8 U.S.C. § 1159(a)(1) (allowing recognized refugees who have been present in the US for at least a year to effect an adjustment of status to permanent residence); R. Cholewinski, "Economic and Social Rights of Refugees and Asylum Seekers in Europe" (2000) 14 Geo. Immgr. L.J. 709 at 738 ("All fifteen European Union countries have ratified the ECHR, the ICCPR and the ICESCR. The treatment afforded to Refugee Convention refugees concerning economic and social rights generally conforms to the requirements of the Refugee Convention and in most cases ... this treatment is generally on par with that afforded nationals"). But see G. Goodwin-Gill, The Refugee in International Law (Oxford: Clarendon P., 1995) at 121 ("The individual still has no right to be granted asylum [...] To pursue an ideal of asylum in the sense of an obligation imposed on states to accord lasting solutions [...] is currently a vain task"). Goodwin-Gill, however, is interested in the issue of refugee protection not simply among liberal affluent states, but also among developing states. While it is undeniable that developing countries host the vast majority of refugees in the world, and that these countries are, moreover, unwilling to be bound by any international obligation to accord long term permanent residence or even citizenship to refugees, it remains the case that, at least at present, the practice in most liberal affluent states is to accord successful refugee claimants the right to ultimately become full members of the citizenry. 57 This practice with respect to immediate family members is arguably now a requirement under international law. See e.g. HRC, General Comment No. 10 (Article 23) (39l1 Session, 1990) in HRI/GEN/Rev.4 at 107 at Tf5 (stating that article 23 of the ICCPR requires that states take measures "to ensure the unity or reunification of families, particularly when their members are separated for political, economic of similar reasons"); J. Fitzpatrick, Human Rights Protections for Refugees, Asylum-Seekers and Internally displaced persons (New York: Transnational Publishers, 2002) at 69 ("a recognized refugee, could allege that the refusal to permit her to reunify with her children violates Article 23 [of the ICCPR]"); S. Starr & L. Brilmayer, "Family Separation as a Violation of International Law" (2003) 21 Berkeley J. Int'l L. 213 at 278-283, 284 ("Many instances of family separation occurring today violate already-existing 77 whereas many liberal states, including Canada, are highly selective about the backgrounds and qualifications of those who are offered the possibility of immigrating under regular immigration procedures, asylum seekers are perceived to be "self- selecting" immigrants. This last point leads to popular expressions of concern that:

• asylum seekers may lack the qualities that will allow them to quickly integrate into the economy and the society of the host state, and are thus both more likely to draw on social programs such as welfare, and more likely to produce a strong international legal requirements and prohibitions"); H. Lambert, "The European Court of Human Rights and the right of refugees and other persons in need of protection to family reunion" (1999) 11 IJRL 427 (reviewing recent European Court Jurisprudence on the right to family reunification ). CQ Both Canada and Australia's immigration policies have in the last several decades focused on increasing the number of independent skilled workers immigrating under points system programs designed to evaluate applicants' potential to contribute to the national economy. While family based immigration continues to predominate in the US, there have been a number of recent attempts to try to move increasingly towards the Canadian and Australian systems. See generally, R. Iredale, "The internationalization of Professionals and the Assessment of Skills: Australia, Canada and the US" (2002) 16 Geo. Immigr. L.J. 797. The trends in the types of new Permanent Residents accepted in the past few decades in Canada clearly demonstrate a preference for immigrants selected under the point system. According to statistics from Citizenship and Immigration Canada in 1980 of a total of 143,145 new permanent residents Canada accepted 51,352 Family Class Immigrants (36%), 49,894 Economic Immigrants (35%), and 40,349 Refugees (28%>). The equivalent numbers for 2004 were, out of a total of 235,824 new permanent residents, 62,256 Family Class Immigrants (26%), 133,746 Economic Immigrants (57%), and 32,686 Refugees (14%). Citizenship and Immigration Canada, "Facts and Figures 2004: Immigration Overview: Permanent and Temporary Residents" (online: http://www.cic.gc.ca/english/pub/facts2004/index.html) (accessed: 10 September 2005). For a critique of this tendency from an economic perspective, see: D. Green & A. Green, "The Economic Goals of Canada's Immigration Policy, Past and Present" (1999) 24:4 Canadian Public Policy 425. S. Gallagher, Canada's Dysfunctional Refugee Determination System (Vancouver: Fraser Institute, 2003) (online: http://www.fraserinstitute.ca/admin/books/files/ImmigrationPPS78.pdf) (accessed: 10 September 2005) [Gallagher, "Dysfunctional"] ("Given [...] the fact that any individual from any country has the right to make an asylum claim, Canada's in-country refugee determination process constitutes Canada's core 'self-selecting' migratory opportunity"); P. Kelly, "That Rear Vision Thing" in The Weekend Australian (10 November 2001) 32 ("During the past 50 years Australia has taken 600,000 refugees with little domestic tensions. These refugees were accepted on Australia's terms. The difference now is that asylum-seekers and the industry that runs them self-select Australia as a destination. No Australian government can acquiesce in this situation"). 78

negative reactions on the part of existing members of society against allowing further migration than would be produced by equivalent numbers of selected immigrants;60 • the possibility of seeking asylum creates incentives for people to circumvent the regular immigration procedures, leading not only to perceptions of unfair treatment towards those who wait patiently in line in order to immigrate under the regular system, but also to a complete breakdown of the regular process if the numbers of asylum become sufficiently large; and, • whereas the number of immigrants selected to come to the receiving state in any particular period can be controlled by state authorities and thus can be adjusted in

See e.g. G. Borjas, "The Economic Benefits From Immigration" (1995) 9 J. of Economic Perspectives 3 (noting the increasing number of migrants to the United States who have not been selected on the basis of their being highly skilled workers, and arguing that: "Because less skilled workers tend to qualify for and participate in public assistance programs, the deteriorating skill composition of the immigrant flow may have increased the fiscal costs of immigration substantially"); Home Office, Secure Borders, Safe Havens: Integration with diversity in modern Britain (London: Secretary of State for the Home Department, 2002) (online at http://www.asylumsupport.info/publications/officialdocuments/diversity.pdf) at f4.91 [Home Office, "White Paper"] ("There is evidence to suggest that many refugees find it difficult to make the transition from support to independence"); G. Picot & A. Sweetman, "The Deteriorating Economic Welfare of Immigrants and Possible Causes: Update 2005", Statistics Canada Research Paper Series No. 262 (June 2005) (online at: www.statcan.ca) (accessed: 13 September 2005) at 15 ("Immigrants from [Africa, Asia and Eastern Europe] may have lower earnings at entry, even with comparable levels of education and experience. Their human capital may initially be less transferable due to potential issues regarding language, cultural differences, educational quality, and possibly discrimination"). But see N. Kelley & M. Trebilcock, The Making of the Mosaic: A history of Canadian Immigration Policy (Toronto, U. of Toronto P., 1998) at 446 (noting that there is a general consensus among Canadian economists that, at least in Canada, "refugees do not seem to perform markedly less well than other immigrants or the native- born population"). Citizenship and Immigration Canada, "News Release: Caplan Tables New Immigration and Refugee Protection Act" (6 April 2000) (online: http://www.cic.gc.ca/engIish/press/00/0009%2Dpre.html) ('"Closing the back door to those who would abuse the system allows us to ensure that the front door will remain open,' said Minister Caplan, 'both to genuine refugees and to the immigrants our country will need to grow and prosper in the years ahead'"); J. Reitz, "Canada: Immigration and Nation Building" in at 109-110 ("the potential abuse of the refugee-determination system threatens the general perception of a well-manage immigration program"); Home Office, "White Paper", supra note 60 at If 4.2 ("There is a world of difference between offering sanctuary to those in genuine fear of persecution and allowing asylum seekers to stay simply because the UK is their country of preference"). 79

response to various economic and social developments, the number of asylum seekers is determined by the "choices" made by those seeking asylum62 - a point of particular concern where the number of those who would, if they had the opportunity, like to migrate to liberal affluent sates, is perceived to be extremely large.

The second set of relevant facts leading to the popular preoccupation with asylum seekers is that the refugee determination process takes several months - or even years - during which time the refugee claimant may, as is the case in Canada, be provided access to the labour market,64 to various social programs such as welfare,65 and to some (minimal) level of subsidized legal assistance. In other countries, as is mandatory in

T. Williams, The Role of Transportation in Immigration 1900-2000 (Ottawa: Citizenship and Immigration Canada, 2001) (online: http://www.cic.gc.ca/english/department/transport/index.html) ("A key priority [of Citizenship and Immigration Canada] is to protect the integrity of the selection process from the impact of the large, population-driven and essentially self-directed movement of migrants seeking better economic prospects in other countries"). C. Dauvergne, Humanism, Identity, and Nation: Migration laws in Canada and Australia (Vancouver: UBC Press, 2005) at 66 ("The early-twenty-first-century debates about immigration law in liberal democracies takes place against the often unstated, but potentially quite truthful, spectre of millions of individuals wanting to become members of these wealthy societies"); P. Barkham, "The other Howard's way won't work here: Dividing refugees into 'good' and 'bad' won an election for John Howard. Now Michael Howard hopes to emulate him" in The Guardian, Online Ed. (January 25, 2005) (online: http://www.guardian.co.Uk/comment/story/0J604.J 397747,00.html) (accessed: September 12, 2005) [Barkham, "The Other Howard"] ("Good refugees patiently wait in a 'queue' in UN camps. [...] Bad refugees 'jump the queue' by paying people smugglers to help them reach another country where they can claim asylum. [...] When setting a cap on the number of refugees admitted each year, John Howard explicitly said that every 'queue-jumper' given refugee status is denying those waiting in camps for the Australian government to pluck them to safety"). Immigration and Refugee Protection Regulations, SOR/2002-227, s. 209 [IRPA Regulations]. 65 See e.g. O. Reg. 134/98 s. 6(2)(b), passed pursuant to Ontario Works Act, S.O. 1997, C. 25, s.74(l)(viii) (allowing refugee claimants access to the Ontario social assistance program ironically called "Workfare"). 66 For a good review of the (highly limited) legal aid resources available to refugee claimants across Canada, see Social Planning and Research Council of BC, An Analysis of Immigration and Refugee Law in Canada (Toronto: Department of Justice Canada, 2003) (online: http://canada.iustice.gc.ca/en/ps/rs/rep/2003/rr031ars-18/larsl8.pdf) (accessed: 12 September 2005). 80

Australia, and as is often the case in the United States, they may be detained for the duration of the assessment of their claim - at a significant expense to the state. It is important to note in this regard that, beyond the question of overloaded and under-funded refugee determination processes, the central reason why refugee claims can take a long period of time to be finalized is that refugee claimants are in most liberal affluent states entitled to relatively robust due process rights with respect to their refugee hearings and subsequent appeals or applications for judicial review.69 As a result, it is common for the refugee determination process to be criticized as being open to abuse by those whose claims for refugee protection are ultimately rejected, but who nevertheless gain access to

ChuKhengLim v. Minister for Immigration (1992), 176 CLR 1 (upholding the authority of the executive of Australia to detain asylum seekers); Al-Kateb v. Godwin, [2004] HCA 37 (upholding legislation mandating mandatory detention of aliens who enter Australia without permission, even where that legislation results in the detention of a stateless individual that will continue indefinitely in the reasonably foreseeable future). For a persuasive critique of Australia's practices regarding the detention of refugee claimants, see Mary Crock, ed., Protection or Punishment: The Detention of Asylum Seekers in Australia (Annandale, NSW: The Federation Press, 1993). See generally M. Dow, American Gulag: Inside U.S. Immigration Prisons (Berkley: U. Calif. P., 2004) [Dow, American Gulag]; T. Miller, "Blurring the Boundaries Between Immigration and Crime Control in After September 11th" (2005) 25 B.C. Third World L.J. 81; D. Kanstroom, "Criminalizing the Undocumented: Ironic Boundaries of the Post- September 11th 'Pale of Law"' (2004) 29 N.C.J. Int'l L. & Com. Reg. 639; A. Schoenholtz, "Refugee Protection in the United States Post-September 11" (2005) 36 Colum. Human Rights L. Rev. 323. See e.g. IRPA, supra note 56 at s. 72(1) (authorizing judicial review of Immigration and Refugee Board decisions, with leave of the Federal Court of Canada); Singh, supra note 32 (holding that refugee claimants have the right to an oral hearing); Calles v. Canada (Minister of Employment & Immigration) (1990), 12 Imm. L.R. (2d) 48 (Fed. C.A.) (holding that refugee claimants have the right to legal counsel); Calles v. Canada (Minister of Employment & Immigration) (1990), 12 Imm. L.R. (2d) 48 (Fed. C.A.) (holding that refugee claimants have a right to sufficiently timely disclosure to allow counsel to adequately prepare); Gonzalez v. Canada (Minister of Employment & Immigration) (1991), 14 Imm. L.R. (2d) 51 (Fed. C.A.) (holding that refugee claimants have the right to call witnesses and to engage in cross examinations); Xie v. Canada (Minister of Employment & Immigration) (1990), 10 Imm. L.R. (2d) 284 (Fed. C.A.) (holding that refugee claimants have the right to a competent translation). For a succinct, though admittedly somewhat dated, review of similar procedural protections in a variety of other liberal jurisdictions see H. Glenn, Strangers at the Gate: Refugees, Illegal Entrants and Procedural Justice (Montreal: Les editions Yvon Blais, 1998) [Glenn, Strangers] (see especially chapter IV). 81 various rights in the interim, or whose decision to make such "fraudulent" claims causes

71 the state to incur significant expenses. Of course, when I suggest that refugee claimants enjoy "relatively robust due process rights", I only mean in comparison to the rights accorded to migrants seeking admission without authorization who do not make refugee claims (or applications for similar forms of protection). Such migrants may, in most states, simply be denied entry as a matter of administrative discretion in a manner that is, practically speaking, unreviewable. Thus these commonly raised concerns with respect to refugee claimants appear to apply with much less force to migrants who do not make refugee claims.

Finally, the third set of facts that are often pointed to as explaining popular preoccupations with asylum seekers is that, in most affluent liberal states, when refugee claims fail or are abandoned there are relatively few resources put into enforcing subsequent requirements that the unsuccessful refugee claimant leave the country.73 The

M. Jimenez, "Broken Gates: Canada's welcome mat frayed and unraveling" in The Globe and Mail (16 April 2005) A8 ("Harjit Singh's case has come to symbolize all that is wrong with Canada's refugee and immigration systems. An individual whose bid to stay was repeatedly spurned was still able to appeal his way through more than a decade in this country"). 71 Home Office, "White Paper", supra note 60 at para. 15 ("Over half of people who apply for asylum are currently found not to be in need of any form of international protection. It is this misuse of the asylum procedures that creates so many of the difficulties and costs in operating an effective system"). 79 For example, in France, Germany and Denmark, exclusion at points of entry of non- refugee claimants is effected by police authorities where the person seeking entry cannot establish a right to entry, or where there is reasonable suspicion that the person seeking entry will not conform with local laws. Because the procedures are d to achieve rapid exclusion, possibilities to judicial recourse (at least from within the country) are highly curtailed. For an excellent comparative review of state practices in this area, see: Glenn, Strangers, supra note 69. Canadian law does provide some possibilities for judicial review with respect to non-refugee claimants who are denied entry to Canada, but applicants are not entitled to remain in Canada while their applications for judicial review are heard. IRPA Regulations, supra note 64 at ss. 231-232 (providing statutory stays of removal for those seeking judicial review of refugee claim or pre-removal risk assessment determinations). Moreover, in principle, Immigration Officers at points of entry can simply refuse to examine foreign nationals, other than refugee protection applicants, seeking to enter the country, directing them to return to their point of origin. {Ibid, at s. 240). See e.g. R. Tremble, et al, Not Just Numbers: A Canadian framework for future immigration (Ottawa: Minister of Public Works and Government Services Canada, 1997) 82

complaint that such a scenario generates is that the "fraudulent" claims may not only prove costly to administer, but also may lead to "fraudulent" refugee claimants being temporarily authorized to "enter" the country, where they then remain illegally even after their claims for refugee protection are denied.75 While similar concerns are sometimes expressed with respect to enforcing the departure of those who enter the country through other means (e.g. student and visitor visas) and then overstay their visas, these concerns are generally regarded as less pressing. Consider, for example the reported priority accorded to various types of removals by Canadian officials: Media reports have suggested that some 27,000 people with deportation orders are still in Canada and that their whereabouts are unknown. This is

at 103 [Tremble, Not Just Numbers] ("Citizenship and Immigration Canada cannot control the large number of people coming into the country who are inadmissible or who become subject to removal during their stay here. The department lacks the resources, the means and perhaps the will to deal effectively with them"); S. Gallagher, "Canada's Dysfunctional Refugee Determination System: Canadian Asylum Policy from a Comparative Perspective" (2003) 78 Fraser Institute's Public Policy Sources 1 at 26 ("[There is a] general disorganization and lack of priority given by government efforts to deport failed refugee claimants"). 74 In 2003, the government of the UK estimated the costs it paid with respect to asylum seekers at approximately £1.804 billion. Home Office, "Home Office Publishes Latest Asylum Statistics—Robust New Measure to Tackle Asylum Abuse." Press release (29 November 2002) 332/2002 (online: http://www.homeoffice.gov.uk/n_story.asp7item__id=293) (accessed: 14 September 2005). 75 Hansard, 150 (February 27, 2002) at 1735 (Mr. Chuck Cadman) (introducing a private members bill to provide automatic deportation of refugee claimants transiting through the United States, Mr. Cadman stated: "It is very clear to anyone in the world that Canada does not have the wherewithal, nor perhaps the political will, to deport failed refugee claimants [...] This point is made very clear by the fact that Canadian immigration officials have no idea where over 27,000 failed refugee claimants are, even though they have been ordered deported"). Indeed, a number of prominent advocates for refugees have argued that the low levels of enforced removals from liberal states of failed refugee claimants seriously hampers the efforts of those working on behalf on individuals who are legitimately in need of protection by providing (1) incentives for economically motivated migrants to resort to refugee claims to enter liberal countries and (2) ammunition and arguments for those who would close borders against asylum seekers on that basis. Such theorists see strong removal enforcement measures as a key mechanism to ensure a clear split between refugee protection law and general migration law. See e.g. J. Hathaway, "Refugee Law is not Immigration Law" (2002) World Refugee Survey [Hathaway, "Not Immigration Law"]; P. Schuck, "Refugee Burden-Sharing: A Modest Proposal" (1997) 22 Yale J. Int'l L. 243. But, for a persuasive critique of such a view, see D. Anker, et al, "Crisis and Cure: A Reply to Hathaway/Neve and Schuck" (1998) 11 Harv. Hum. Rts. J. 295. 83

misleading. [...] The location of many of these people is known to CIC, but removals are prioritized. The Committee heard testimony that priority for removal is given to: first, criminals; second, failed refugee claimants on social assistance; third, all other failed refugee claimants; and, finally, other over-stays.

A potential explanation for this higher level of concern regarding unsuccessful refugee claimants is that one of the conditions for allowing non-refugee claimant migrants to enter the country is that the officials responsible for providing visas and conducting examinations at ports of entry must be satisfied that the would-be-migrant 77 does not intend to remain permanently in the country. Refugee claimants, to the contrary, have indicated by making their claims a desire to remain in the country indefinitely. A somewhat less charitable explanation would be related to considerations of socio-economic class: refugees are perceived as having limited access to capital 70 (whether human capital or otherwise), whereas students and visitors must demonstrate to the satisfaction of visa and customs officials that they have access to sufficient

Canada, Parliament, Standing Committee on Citizenship and Immigration, Hands Across the Border (4 December 2001) at Chapter 2.E.V. (emphasis added). See e.g. IRPA, supra note 56 at s. 20(1 )(b) (requiring that non-citizens who are not entitled to become permanent residents satisfy an immigration officer that they intend to leave the country by the end of their authorized stay). 78 The current practice in Canada is for refugee claimants to be declared inadmissible pursuant to IRPA, supra note 56 at ss. 44(1) & 20(1) and IRPA Regulation, supra note 64 at s. 6 (making a foreign national inadmissible to Canada if they are seeking to remain in Canada permanently in spite of not having applied for a permanent resident visa prior to entering the country). Enforcement measures (i.e. removal) are then stayed pending the outcome of the refugee claim determination. 70 This perception, while unfounded, is difficult to combat - notwithstanding the incredible contributions to host states made by such refugees as Albert Einstein, the Dali Lama, Chinua Achebe, Sima Samar, Madeleine Albright, and Canada's new Head of State, Michaelle Jean. For an excellent outline and assessment (with a comprehensive bibliography) of the causes of negative perceptions of asylum seekers, see K. Tait, Media Image, Community Impact: Assessing the impact of media and political images of refugees and asylum seekers on community relations in London (London: Information Centre About Asylum and Refugees in the UK, 2004) (online: http://www.icar.org.uk/?lid=4690) (accessed: 16 September 2005). Indeed, the perceptions of refugees are so negative that some scholars have gone so far as call refugees "abject", "beyond the pale" and instantiations of "bare life". See e.g. G. Agamben, Homo Sacer: Sovereign power and bare life (Stanford: Stanford U.P., 1995). 84

resources for the duration of their stays - likely implying ease of access to further resources. The presence of visitors and students who overstay their visas may, then, be perceived as imposing lower costs (or indeed bringing a net advantage) to the receiving state, whereas unsuccessful refugee claimants may be perceived as imposing various costs (whether direct state expenditures in terms of funding for shelters, food-banks, and so on, or indirect costs in terms of social problems believed to be related to low income groups). Finally, a simpler, though more troubling explanation would be to attribute this perception to straightforward xenophobia and racism towards those who belong to the demographics commonly associated with refugee claimants.

Because of all of the above perceived costs that are imagined to be associated with giving effect to the rights enjoyed by refugee claimants but not by other migrants, states have invested significant resources into developing mechanisms designed to prevent asylum seekers from gaining access to these rights. Lest the reader feel that I

See e.g. IRPA, supra note 56 at s. 39 (making inadmissible any foreign nationals who "are or will be unable or unwilling to support themself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made"). 1 See e.g. I. Omelaniuk, et al, World Migration 2005: Costs and Benefits of International Migration (Geneva: International Organization for Migration) at 171: [Studies in the US have] found that newly arrived immigrants with little education used more state and local public services than they paid in taxes. Experience in countries like Australia and Canada have shown that skilled immigrants have a lower propensity to depend on public welfare." To consider only one of countless possible examples, Pauline Hanson, the leader of Australia's One Nation party, and Member of the Australian Parliament put it this way in her opening address to Parliament in 1996: I believe we are in danger of being swamped by Asians. Between 1984 and 1995, 40% of all migrants coming into this country were of Asian origin. They have their own culture and religion, form ghettos and do not assimilate. Cited in C. Lopez, "Australian Immigration Policy at the Centenary: The Quest for Control" (2003) 18 Geo. Immigr. LJ. 1 at 12. ' See generally, J. Hathaway & R. Neve, "Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection" (1997) 10 Harv. Hum. Rts. J. 115 [Hathaway & Neve, "A Proposal"] at 119-140; A. Brouwer & J. Kumin, "Interception and Asylum: When Migration Control and Human Rights Collide" (2003) 21:4 Refuge 19 [Brouwer & Kumin, "Interdiction"]; Macklin, "Disappearing Refugees", supra note 54; B. Christian, "Visa Policy, Inspection and Exit Controls: Transatlantic Perspectives on Migration Management" (1999) 14 Geo. Immigr. L.J 215 [Christian, "Visa Policy"]; J. Fitzpatrick, "Revitalizing the 1951 Refugee Convention" (1996) 9 85 am exaggerating, and that efforts are being made to control migration in general, and not just to turn away refugee claimants in particular, consider, as an example, the oft-cited report commissioned by the Canadian government, Not Just Numbers: A Canadian framework for future immigration. This report, whose recommendations ultimately established the general framework for the current Immigration and Refugee Protection Act, is surprisingly blunt on the issue of Canada's policy of turning away refugees: Canada has also responded to the increase in international migration flows through [...] measures [...] for limiting in-Canada refugee claims both by groups having a high percentage of non-genuine claims (Chile) and by those making many successful claims (Sri Lanka, Czech Republic).86

As we shall now see, the primary measures for "limiting in-Canada refugee claims" are non-entree strategies, which build on a highly problematic gap in international refugee protection law.

2.3.1. Gaps in Protection: The 1951 Convention

In spite of blatant recognition of policies designed to explicitly turn away refugee claimants, scholars and refugee advocates have thus far been unsuccessful at drawing significant public attention to the problems with such measures. Scholars do not, however, have difficulty identifying the key problem to which attention ought to be drawn: the use of legal formalism to undermine what is often taken to be the original spirit or aspiration 7 of the 1951 Convention* The central problem is the use of a narrow

Harv. Hum Rts. J. 299 (see especially 237); J. Howard, "To Deter and Deny: Australia and the Interdiction of Asylum Seekers" (2003) 24:1 Refuge 35 [Howard, "Deter and Deny"]; N. Coleman, "Non-Refoulement Revised: Renewed Review of the Status of the Principle of Non-Refoulement as Customary International Law" (2003) 5 European J. of Migration and L. 23; A. Sianni, "Interception Practices in Europe and their Implications" (2003) 24:1 Refuge 25; UNHCR, "Interception of Asylum Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach" (2000) (Geneva, EC/50/SC/CRP.17). Tremble, Not Just Numbers, supra note 73. 1RPA, supra note 56. Tremble, Not Just Numbers, supra note 73 at 80. 87 Below I indicate reasons to doubt grandiose claims regarding the original intention of the 1951 Convention. See notes 96-97 (and accompanying text). Also, although I do not have the space to fully set out an argument to this effect, and although I acknowledge the contemporary uses (and hence the contemporary shared meaning) of the 1951 Convention 86

reading of the text of the 1951 Convention to undermine assurances that the complicity of liberal states in genocide when they turned away Jews attempting to flee the Nazi regime would "never again" be repeated.

In spite of a widespread public perception that, through their refugee determination systems, states such as Canada do in fact make good on these assurances, contemporary measures to turn away asylum seekers form a fundamental pillar of the border control regimes of all liberal states. These measures (which I will detail in the next

are tied closely to the failure of liberal states to properly respond to the Holocaust, I would suggest that the initial driving motivation behind the 1951 Convention was a desire to avoid interstate conflict which was escalating surrounding the specific issue of responsibility for the so-called "displaced persons" in Europe following World War II. Consider, for example that while the preamble to the 1951 Convention does not mention genocide or the Holocaust, it does mention that asylum may place "unduly heavy burdens on certain countries" and expresses the concern that refugees do not become "a cause of tension between states." Moreover, until 1967 with the Protocol Relating to the Status of Refugees, (1967), 606 U.N.T.S. 267, the 1951 Convention applied only to those who had been displaced by World War II. 881951 UN Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137 [1951 Convention]. For example, in Sale v. Haitian Ctrs. Council, 113 S. Ct. 2549 (1993) [Sale] (holding that the US involuntary return of Haitian asylum seekers intercepted on the high seas was not prohibited by the Article 33 of the 1951 Convention because it only applies to asylum seekers who have arrived on the territory of the host state) both the majority and the dissent, despite their otherwise vast difference in opinion, agree in principle about the "spirit" or the intention of the 1951 Convention. According to the majority: The drafters of the [1951] Convention [...] may not have contemplated that any nation would gather fleeing refugees and return them to the one country they had desperately sought to escape; such actions may even violate the spirit of Article 33; but a treaty cannot impose uncontemplated extraterritorial obligations on those who ratify it through no more than its general humanitarian intent. Because the text of Article 33 cannot reasonably be read to say anything at all about a nation's actions toward aliens outside its own territory, it does not prohibit such actions. Justice Blackmum, in dissent, goes even further: The Convention that the Refugee Act embodies was enacted largely in response to the experience of Jewish refugees in Europe during the period of World War II. The tragic consequences of the world's indifference at that time are well known. The resulting ban on refoulement, as broad as the humanitarian purpose that inspired it, is easily applicable here, the Court's protestations of impotence and regret notwithstanding. (Ibid, at 208). 89 For an excellent discussion of Canada's role in this complicity, see I. Abella & H. Troper, None is Too Many: Canada and the Jews of Europe, 1933-1948, 3' ed. (Toronto: Key Porter, 2000) [Abella & Troper, None is Too Many]. 87 five sub-sections) are all purportedly justified on the basis of a loophole in the 1951 Convention that is evident on a simple textual reading. Article l.A.(2) of the 1951 Convention defines a Refugee as a person who: owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Article 33.1. reads:

No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

These two articles together have consistently been taken to imply: (1) that individuals cannot be deemed "Refugees" until such time they have left their countries of nationality or habitual residence; and (2) that the prohibition on "refoulement" of refugees applies only to refugees who are physically located on the territory of the host state.91 There are a number of important comments that could be made about these two points, but for

W189U.N.T.S. 147. 91 See e.g. Goodwin-Gill, Refugee, supra note 30 at 87 ("The core meaning ofnon- refoulement requires states not to return refugees in any manner whatsoever to territories in which they face the possibility of persecution. But states may deny admission to bona fide asylum-seekers in ways not obviously amounting to breach of the principle. For example, stowaways and refugees rescued at sea may be refused entry; refuge boats may be towed back out to sea and advised to sail on; or military operations may render border crossing too dangerous to contemplate"); A. Khan, "Legal Problems Relating to Refugees and Displaced Persons, in Hague Academy of Int'l Law" (1976) 149 Recueil des Cours 287 at 318 ("[T]he non-refoulement rule [...] appl[ies...] only to those already within the territory of the Contracting State [...] There is thus a serious gap in refugee law as established by the 1951 Convention and other related instruments and it is high time that this gap should be filled"); N. Robinson, Convention Relating to the Status of Refugees: A commentary (New York: Institute of Jewish Affairs, 1953) (["The principle of non- refoulement] concerns refugees who have gained entry into the territory of a contracting State, legally or illegally, but not to refugees who seek entrance into this territory"). 92 One would be that an entire field of migration scholarship - forced migration studies - has developed precisely around problematizing these combined points. Forced migration 88

present purposes it suffices to notice that there are two significant potential gaps in the protections offered to asylum seekers in the 1951 Convention.

The first is a potential gap between the moment when individuals becomes "Refugees" (that is to say the moment they leave their countries of nationality or habitual residence out of fear of persecution on the grounds listed) and the time when they are protected against refoulement or forced return (that is to say, when they reach the territory of a host state). When "Refugees" are in transit between their countries of nationality (for instance, while on the high seas) and the country where s/he is seeking protection, the 1951 Convention appears - at least on a narrow reading - to be silent as to any rights or protections "Refugees" enjoy.94

The second problem is another potential gap that flows from the first: the 1951 Convention prohibits "expelling" and "returning" refugees to "territories where his life or

scholars have put special emphasis on the challenges faced by those who have been subject to involuntary migration regardless of whether or not such migration crosses state borders or leads to refugee protection in a host state. For a good introduction, see S. Castles, "Towards a Sociology of Forced Migration and Social Transformation" (2003) 37(1) Sociology 13. I put the term in quotes in order to highlight that I am referring to the moment when, according to the 1951 Convention, a person meets the criteria of being a refugee, which is distinct from the moment when person is actually formally accorded refugee status through some refugee determination process. There are, of course, many who suggest that such a narrow reading is unwarranted. See for example, P. Mathew, "Australian Refugee Protection in the Wake of the Tampa" (2002) 96 A.J.l.L. 661 at 666 ("The assumption [...] that extraterritorial interception [...] of asylum seekers is permissible [...] is generally not accepted"); Sale, supra note 88 at 2570 (per Justice Blackmum, dissenting): [The 1951 Convention] is clear not only in what it says, but also in what it does not say: It does not include any geographical limitation. It limits only where a refugee may be sent 'to,' not where he may be sent from. This is not surprising, given that the aim of the provision is to protect refugees against persecution"). While I agree that, in principle, the 1951 Convention could - and on an ideal level, probably should - be read as preventing states from taking steps which prevent "Refugees" from entering onto their territories, it must be acknowledged that such a reading departs dramatically from the dominant interpretation of the 1951 Convention by most State Parties. What is more, however, is that it is extremely unlikely, due to contemporary political realities, that any affluent liberal state would accept such an expansive interpretation. 89 freedom would be threatened", but does not speak of providing people with a right to leave territories where their lives are threatened or with a right to enter territories where they can be protected from such threats. To be sure, Article 31.1 of the 1951 Convention does provide some protection against criminal prosecution to refugees who manage to successfully enter onto the territories of states in which they are seeking protection, even if they enter the state illegally: The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who [...] enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

In spite of these protections against criminal prosecution, however, what the 1951 Convention fails to explicitly do is to put a stop to states preventing refugees from arriving on their territories by means other than imposing criminal penalties against refugees upon their arrival.

Indeed, there is some evidence in the Travaux preparatoires that this loophole was not simply a matter of oversight. To the contrary, it may have been the very existence of the loophole that made adherence to the 1951 Convention feasible for at least some of the delegates. To quote the Travaux preparatoires at length: Baron van BOETZELAER (Netherlands) recalled that at the first reading the Swiss representative had expressed the opinion that the word 'expulsion' related to a refugee already admitted into a country, whereas the word 'return' ('refoulement') related to a refugee already within the territory but not yet resident there. [...]

He wished to revert to that point, because the Netherlands Government attached very great importance to the scope of the provision now contained in article 33 [, which establishes the principle of non- refoulement]. The Netherlands could not accept any legal obligations in respect of large groups of refugees seeking access to its territory. [...]

In order to dispel any possible ambiguity and to reassure his Government, he wished to have it placed on record that the Conference was in agreement with the interpretation that the possibility of mass migrations

Although the right of exit for purposes of seeking asylum is arguably protected under Article 14(1) of the Universal Declaration of Human Rights, GA Res. 217(111), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948) ("Everyone has the right to seek and to enjoy in other countries asylum from persecution"). 90

across frontiers or of attempted mass migrations was not covered by article 33.

There being no objection, the PRESIDENT ruled that the interpretation given by the Netherlands representative should be placed on record.

Mr. HOARE (United Kingdom) remarked that the Style Committed had considered that the word "return" was the nearest equivalent English to the French term "refoulement". He assumed that the word "return" as used in the English text had no wider meaning.96

This interpretation by the Netherlands delegate was raised to ensure that an expansive reading of the non-refoulement norm set out in article 33 would not prevent states from taking steps to prevent those seeking refugee protection from coming onto their territory, even if those same individuals would be entitled to refugee protection in the event that they were successful in - legally or illegally - setting foot on the state's territory. While there remains some controversy on this point, these statements along with similar ones made by other delegates have led a number of scholars, including Goodwin- Gill, to conclude that: Probably the most accurate assessment of states' views in 1951 is that there was no unanimity, perhaps deliberately so. At the same time, however, the fact remains that states were not prepared to include in the Convention any article on admission of refugees; non-refoulement in the sense of even a limited obligation to allow entry may well have been seen Q7 as coming too close to the unwished-for duty to grant asylum.

Now, I want to be very clear about my argument here. I am not suggesting that the 1951 Convention, as it ought to be interpreted today, necessarily leaves these two gaps in protection. In fact, I am persuaded by critiques of the narrow interpretations of the 1951 Convention. In the place of these narrow readings I, like many observers, would advocate no contemporary purposive readings of the 1951 Convention that avoid creating such gaps.

Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Record of the Thirty-fifth Meeting, U.N. Doc. A/CONF.2/SR.35, (July 25, 1951) (online at: www.unhcr.ch) (accessed: September 16, 2005). t? Goodwin-Gill, Refugee, supra note 30 at 74. 98 By contemporary purposive readings, I mean the notion that today the 1951 Convention has (or ought to have) come to mean something broader than it did at the time it was signed, and that any purported gap in protection is incompatible with that meaning. I, thus, find myself in agreement with Justice Blackmum in his dissenting opinion in Sale, 91

What I do insist upon, however, is: (1) that the loophole existed in the 1951 Convention as it was initially set out and understood by many of the State Parties; and, (2) that any attempt to set out an argument for why the 1951 Convention today should be interpreted in a manner that closes this loophole must deal with the overwhelming evidence, which I will outline below, regarding contemporary state practice that runs contrary to expansive interpretations of the 1951 Convention?9 To clarify further, by this second point, I do not mean to say that the mere fact of contrary state practice invalidates a particular interpretation of an international norm. It most assuredly does not, as demonstrated by the combined existence of a possible jus cogens norm against torture and the reality that torture continues to be practiced in most states.100 Overwhelming contrary practice, does, however, raise the bar with respect to demonstrating a consensus regarding the existence of the asserted norm that is being contravened by this practice.101 All too often, well- intentioned scholars seeking to discover in the 1951 Convention international legal norms supra note 88, and in disagreement with Hathaway, "Not Immigration Law", supra note 75. M. Gibney & R. R. Hansen, Asylum Policy in the West: Past Trends, Future Possibilities, United Nations University, World Institution for Development Economics Research, Discussion Paper No. 2003/68 (September 2003) at 5: Since the early 1990s, all Western states have embraced as a chief policy goal (arguably the chief goal) the prevention of the arrival of asylum seekers at their frontiers or territory. They have done so largely to avoid incurring responsibilities under the 1951 Convention (and other domestic and international legal instruments), and by so doing to escape the expenses of asylum processing and the possibility of political backlashes caused by the arrival of large numbers of entrants. For a discussion about how these states go about forwarding this policy goal see below, Sections 2.3.2-2.3.6. 10 For a discussion of this curious state of affairs, see S. Toope, "Powerful but unpersuasive: The role of the United States of America in the evolution of customary international law" in M. Byers and G. Nolte (eds.), United States Hegemony and the Foundations of International Law (Cambridge: Cambridge U.P., 2003) 287 ("practice, even when it is significant, can sometimes be nothing more than a breach of law. The many states that practice torture are not positing a contrary practice for the sake of changing a customary norm. They are breaking a rule that is otherwise inclusively supported"). See generally, S. Toope, "Inside and Out: The stories of international and domestic law" (2001) 50 UNBLJ 11; S. Toope & J. Brunnee, "A Hesitant Embrace: Baker and the Application of International Law by Canadian Courts" in D. Dyzenhaus, ed., The Unity of Public Law 357 (Oxford: Hart Publishing, 2004); S. Toope & S. Rehaag, "Globalization and Instrument Choice: The role of international law" in P. Eliadis, et al, eds, Designing Government: From Instruments to Governance (Montreal: McGill-Queen's U.P., 2004). 92

requiring states to accept the right to first asylum fail to recognize the challenges facing such an interpretation - or worse, fail to acknowledge the existence of the problem. That is to say, they simply do not concede the fact that the contemporary border control regimes of all liberal affluent states are explicitly and more or less openly designed to take full advantage the purported loophole in the 1951 Convention precisely in order to 1 0^ circumvent the right to first asylum. For those who wish to challenge this troubling practice, it is entirely unhelpful simply to pretend that the practice does not exist.

2.3.2. Non-Entree Strategies: Direct Backs & Safe Third Countries

For a notable, and particularly persuasive exception see: N. Coleman, "Non- Refoulement Revised: Renewed review of the status of the principle of Non-Refoulement as customary international law" (2003) 5 European Journal of Migration and Law 23. See e.g. S. Benhabib, The Rights of Others: Aliens, residents and citizens (Cambridge: Cambridge U.P. 2004) [Benhabib, Rights] see especially at 68 ("Significant developments in international law point in the direction of the decriminalization of migratory movements, whether these be caused by the search for refuge or asylum, or by immigration proper"). See also Chapter I, notes 144-146 (and accompanying text). 4 The latest high profile report on migration commissioned by the Secretary General of the United Nations is an excellent example of well intentioned but misguided denial of the existence of the problem. GCIM, Report, supra note 52. In making a series of suggestions about how states can control "irregular migration" the report notes its "concern" that such attempts not undermine the institution of asylum. The report goes on to discuss why it might be that "irregular migrants" are difficult to distinguish from "asylum seekers", suggesting that: First, movements from a single country may include some people who qualify for refugee status and others who do not, especially when that country is simultaneously affected by human rights violations, armed conflict, political instability and economic collapse. Second, many asylum seekers move in an irregular manner, often making use of migrant smuggling networks, because they are unable to gain the documents they need to travel in an authorized manner. Indeed, a person who is being persecuted by her/his government may well find it impossible to obtain a passport, let alone a visa to enter another country. Third, some migrants who manifestly have no need of international protection nevertheless submit an asylum application once they have arrived in another country, so as to maximize the time that passes until they become liable to repatriation, (at 40) Notably absent from this discussion, however, is that destination states are doing everything in their power to turn asylum seekers into "irregular migrants" in a bid to prevent them from reaching potential host states' territories. For a more comprehensive discussion of these issues, see S. Rehaag, "Review: The Rights of Others" (2006) 44 Osgoode Hall Law Journal 395. 93

What, then, is the overwhelming practices through which states take advantage of this loophole in order to avoid incurring 1951 Convention obligations? These practices, commonly termed "Non-Entree" strategies, range from the simple closing down of border crossings, to dramatic (and arguably illegal on other grounds) naval manoeuvres on the high seas.

The first, and most obvious non-entree strategy is the physical shutting down of ports of entry in the face of the arrival of refugee claimants. This common response wherever there are mass migrations of asylum seekers106 has been dramatized in a number of popular Hollywood films, which portray emotional scenes involving asylum seekers who have made arduous journeys to reach a border across which they hope to obtain some measure of protection from the persecution they flee, only to be turned away by border guards of the state in which they are hoping to seek asylum.

Naval manoeuvers on the high seas implicate complex issues of international admiralty and maritime law, which are beyond the scope of the present discussion. As a general rule, however, a state may not board - or otherwise interfere with - vessels flying foreign flags on the high seas. See e.g. A. Humphreys, "Seizure of Boats outside Canadian Limits Proposed" in The National Post (2 November 2001) A4 [Humphreys, "Piracy"] ("In a move compared to piracy on the high seas, the Ministry of Citizenship and Immigration proposed giving Canadian law enforcement officers the authority to board and seize boats outside Canada's territorial waters"). 106 See for example, UNHCR, "Afghan Refugees Continue Arriving at Closed Pakistani Border" in UNHCR News Stories (15 January 2002) (online: www.unhcr.ch) (accessed: 16 September 2005) ("Pakistani authorities refuse to allow the new refugees to enter the country despite their urgent need for humanitarian aid"); R. Bonner, "Zaire closes a order to staunch the flow of rwandans" in The New York Times (21 August 1994) 14 ("The border here was closed early this afternoon by the Zairian authorities after nearly 20,000 Rwandans crossed into Zaire, leaving thousands on the Rwandan side, weary and frustrated after several days of walking"); D. Rohde, "Macedonian troops said to push 1,000 refugees back" in The New York Times (7 May 1999) 14 ("Macedonian border guards effectively sealed the border today, allowing no refugees to cross into Macedonia only two days after 5,000 ethnic Albanians fled here from Kosovo"); "Dreadful notes of preparation" in The Economist (25 August 1990) 31 ("[the] Jordanians, saying they could take no more, closed the border until the 135,000 refugees already there could be repatriated); A. Cowell, "A docile and somber exodus" in the New York Times (3 February 1983) Al (reporting that the borders of Ghana Benin and Togo had been closed to asylum seekers fleeing a Nigerian crackdown on illegal residents); "Nostra culpa" in The Economist (30 March 2002) (available on LEXIS) ("In August 1942 Switzerland closed its borders for some months to those fleeing (as a police circular put it) 'only because of their race, Jews for example'"). 94

For the most part we tend to think of such scenes as located either in the developing world or in the unfortunate history of the developed world up until and including the refusal by countries such as Canada and the United States to admit Jews fleeing the Nazi regime.1 7 It is less well known, however, that liberal states such as Canada continue to pursue explicit "direct back" policies of turning away asylum seekers at land ports of entry in circumstances "where there are sudden surges in the number of [refugee] claimants." These policies are addition to the automatic return of asylum seekers who have transited through countries declared to by "safe", a practice recently enshrined in the Canada-US Safe Third Country Agreement. Under this agreement Canada has permanently closed its land border to most refugees by returning to the United States all but a small number of asylum seekers who attempt to transit to Canada, without providing them with an opportunity to make a refugee claim ° - and, importantly, without considering whether they have a claim which would be successful in Canada but refused in the United States due to differences between the refugee determination systems.

Abella & Troper, None is Too Many, supra note 89; S. Rosenberg, Dir., The Voyage of the Damned (PioneerVideo: 1976). 10R Citizenship and Immigration Canada, "Protected Persons Manual 1: Processing Claims for Protection in Canada" s.8.7 (available online at: http://www.cic.gc.ca/manuals-guides/english/pp/pp01e.pdf). See also IRPA Regulations, supra note 64 at s.41. Canada-US Safe Third Country Agreement, 5 December 2002 (available online at: http://www.cic.gc.ca/english/policy/safe-third.html (accessed: 2 September 2005); Citizenship and Immigration Canada, "Safe Third Country Agreement Comes Into Force Today" (29 December 2004) (available online at: http://www.cic.gc.ca/english/press/04/0420-pre.html (accessed: 2 September 2005). The authority for such returns is provided by IRPA, supra note 56, s. 101 (1 )(d). For a discussion of some of the troubling consequences of this agreement see Macklin, "Disappearing Refugees", supra note 54. Macklin notes that: "a coalition has already formed to challenge the Agreement under sections 7 and 15 of the Canadian Charter of rights and freedoms" {Ibid, at 159). "'A Canadian Federal Court judge has recently held that the Canada-US Safe Third Country Agreement violates the Canadian Charter of Rights and Freedoms (although the decision was, not surprisingly, appealed by the government). Canadian Council for Refugees v. The Queen (2007), 2007 FC 1262. One of court's primary concerns about the Agreement is that it turns out that the United States is not a particularly "safe" country for significant numbers of refugees. In particular, American asylum procedures include very strict time limits and much more restricted treatment refugee claims involving persecution on account of gender. Ibid, at 1(154 & ^[206. For an excellent discussion of these and other problematic features of the Agreement, see Canadian Council for 95

It is essential to note that there is no indication - at least in the long term - that closing down physical borders is an effective strategy to reduce the numbers of person making asylum claims in liberal states. While it appears that the immediate effect of border closings is a reduction in the number of refugee claims, after a relatively short period of time the number of asylum claims creep back up to near original levels. ~ The only real effect seems to be that asylum seekers are forced to enter the country irregularly, generally with the assistance of human smugglers. The inevitable consequence of such a shift is to expose asylum seekers to increased risks associated with human smuggling, ranging from risks related to trafficking and indentured labor, to risks associated with crossing the border in inaccessible locations (deserts, quickly moving bodies of water, etc).113

Another important consequence is the criminalization of asylum seeking: because asylum seekers must break the law in order to get to safety, increasingly harsh border control enforcement activities can be justified as being directed against illegal migration (i.e. at preventing crime) rather than against refugees (i.e. a return to the "none is too many" policy). In other words, criminalization literally leads to the disappearance of refugees from public discourses behind an obscuring haze of illegality.

2.3.3. Non-Entree Strategies: Visa Requirements & Carrier Sanctions

Even more troubling than these straightforward and widely discussed attempts to close borders to asylum seekers are the more day-to-day visa requirement / carrier sanctions programs that play an increasingly central role in the border control regimes of

Refugees, Closing the Front Door on Refugees: Report on Safe Third Country Agreement (August 2005) (online: www.web.ca/~ccr/closingdoor.pdf) (accessed: 1 October 2005). 1 n Macklin, "Disappearing Refugees", supra note 54 at 398 ("While the [Safe Third Country] Agreement may initially thwart asylum seekers arriving on the [...] most observers anticipate that the effect will be temporary"). 113 Stories of such risks along the US-Mexico border are commonplace. Similar stories - the incidence of which is likely to increase in the next few years - have already begun to appear in the Canadian media. See e.g. K. Patrick, "Deadly turn for border runners: Albanian man drowns in bid to enter Canada" in The Windsor Star (7 September 2005). 114 Macklin, "Disappearing Refugees", supra note 54. 96

liberal states. In Canada, the way these program work is that states perceived to generate significant flows of "irregular migration" are placed on a list of countries whose citizens are required to apply for visas abroad in order to be entitled to request admission at a port of entry.116 Visa officers must then be satisfied that visa applicants from such countries do not intend to remain in the country after the expiry of their visa, if one is provided. As a result, anyone thought to be likely to make a refugee claim will

1 1 7 automatically be refused a visa.

Recall, however, that the 1951 Convention prohibits the imposition of criminal sanctions against the "unlawful entry" of successful refugee claimants onto the territory

1 1 R of the host state. Moreover, once refugee claimants have actually entered onto the territory of the host state they benefit from protection against refoulement regardless of whether they entered that state legally. As a result, the visa requirement on its own

115 Of course - and there is ample agreement among scholars and migrant advocates that "irregular migration" is simply a euphemism for refugee claimants. See e.g. Tremble, Not Just Numbers, supra note 73 at 80 ("[Canada uses] visa requirements as a tool for limiting in-Canada refugee claims"); Hathaway and Neve, "A Proposal", supra note 83 at 119 ("most Northern states impose a visa requirement on the nationals of refugee- producing states"); Macklin, "Disappearing Refugees", supra note 54 at ("states require visas from citizens of "refugee-producing" nations and routinely deny visas to anyone deemed likely to make a refugee claim"); F. Crepeau & J. Dench, "Interdiction at the expense of human rights: a long-term containment strategy" (2003) 21 Refuge 4 [Crepeau & Dench, "Interdiction"] at 6 ("The arsenal of measures devised by Northern States to prevent irregular migrants from setting foot on their territories [includes the] imposition of visas for all refugee-producing countries"). Or, to be more accurate, such states are removed from a list of countries whose citizens are exempt from visa requirements. As of 17 September 2005, these countries were: Andorra, Antigua and Barbuda, Australia, Austria, Bahamas, Barbados, Belgium, Botswana, Brunei, China (holders of passports issued by the Government of the Hong Kong Special Administrative Region only), Cyprus, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Israel (National Passport holders only), Italy, Japan, Liechtenstein, Luxembourg, Malta, Mexico, Monaco, Namibia, Netherlands, New Zealand, Norway, Papua New Guinea, Portugal, Republic of Korea, St. Kitts and Nevis, St. Lucia, St. Vincent, San Marino, Singapore, Solomon Islands, Spain, Swaziland, Sweden, Slovenia, Switzerland, United Kingdom, United States, and Western Samoa. IRPA, supra note 56, s. 20(1); IRPA Regulations, supra note 64, ss. 6,7 & 190. 117 IRPA Regulations, supra note 64, s.179. 118 See above, note 95 (and accompanying text). See also, 1951 Convention, supra note 88, Art. 31 119 See above, notes 95-104 (and accompanying text). See also, 1951 Convention, supra note 88, Art. 33. 97 would have little effect on the flow of refugees to host states. To enforce these visa requirements states therefore take the additional step of imposing penalties, not against the refugee claimants themselves, but instead against companies and individuals who provide transportation to ports of entry to persons who lack the requisite visa or other valid travel documents. These penalties, often referred to as "carrier sanctions", are potentially quite significant. They include not only a per-person fine - which in the Canadian context is an "administrative fee" pegged currently at $CAD 3,200 - but also the much more significant expense of paying all the costs associated with the removal of the person from Canada. These expenses include not merely the costs of transportation and accommodation, but also the costs of providing an escort, an interpreter, medical 191 assistance, and so on. To provide an indication of the potential scope of such costs, consider a recent case involving a Somali national who came to Canada on a KLM flight from Paris using a false passport, whereupon he made a refugee claim. While he did not proceed with his refugee hearing, he nevertheless refused to cooperate with subsequent removal efforts, to the point of becoming violent whenever authorities attempted to place him on commercial flights. To effect his removal, Canadian officials ultimately chartered a private aircraft for his transportation back to France. The total bill? $CAD114,715.68, which K.L.M was ordered to pay after a failed attempt at judicial review.1 2

In addition to the significant expenses associated with carrier sanctions, it is important to notice that under the carrier sanctions programs in many states - including Canada - the administrative fee remains payable even where the person who was

IRPA Regulations, supra note 64 at s.280. Note that the Minister of Citizenship and Immigration Canada may enter into a Memorandum of Understanding with transportation companies to reduce such fees in exchange for setting up training and screening processes vetted by Citizenship and Immigration Canada. {Ibid, at s. 280(3)). While a number of scholars report the existence of such memorandum, it is difficult to confirm these assertions, let alone to obtain access to the text of the MOUs. See e.g. Christian, "Visa Policy", supra note 83 at 292. Citizenship and Immigration Canada, however, reported (in 2001) that they had established MOUs with at least 56 airlines. T. Williams, The Role of Transportation in Immigration 1900-2000 (Ottawa: Citizenship and Immigration Canada, 2001) (online: http://www.cic.gc.ca/english/department/transport/index.html) at Chapter 3c. I 9! IRPA Regulations, supra note 64, ss. 273 & 278. I 99 KLM Royal Dutch Airlines v. Canada (Solicitor General), [2004] F.C.J. No. 355 (QL); 2004 FC 308 (F.C.T.D.). 98

transported ultimately succeeds in obtaining refugee status in the country. In the Canadian context, initial attempts made by airlines to challenge the imposition of fees where the individual transported without a valid visa eventually obtains refugee status were successful; however, appeal courts subsequently found that while individual refugees benefit from the protections against criminal sanctions under article 31 of the 1951 Convention, this provision "does not concern the carrier, nor does it extend immunity to any carrier."123

The obvious result of this visa carrier / carrier sanction regime is that transportation companies have a strong interest in refusing to transport "irregular migrants" and in devising systems that will effectively screen out those holding invalid travel documents. This incentive mechanism creates barriers between those in need of asylum and countries that do not wish to incur any obligations towards such individuals. As Simon Brown LJ put it, in an important case affirming the validity of the United Kingdom's carrier sanction regime: What, then, is it which is said to justify placing these burdens, and most notably ICLA [Immigration (Carriers' Liability) Act, 1987], upon carriers? The answer is said to be the imperative needs of immigration control in the face of ever-growing pressures from around the world. [...] The logical necessity for carriers' liability to support a visa regime is surely self-evident. Why require visas from certain countries (and in particular those from which most bogus asylum seekers are found to come) unless visa nationals can be prevented from reaching our shores? Their very arrival here otherwise entitles them to apply for asylum and thus defeats the visa regime. Without ICLA there would be little or no disincentive for carriers to bring them.124

Along similar lines, a recent program evaluation prepared by Citizenship and Immigration Canada describes the "success" of their visa requirement / carrier sanctions regime as follows: The requirement for a visa enhances the integrity of Canada's immigration and refugee protection programs as it allows CIC to screen out travellers who might cause concern before they arrive in Canada. [...] [S]ince the introduction of the visa requirement on December 4, 2001, the

R. v. Deutsche Lufthansa Aktiengesellschaft (c.o.b. Lufthansa German Airlines), [1994] O.J. No. 1618 (QL) (Ont. CA). R. v. Secretary of State for the Home Department, Ex p Hoverspeed, [1999] INLR 591 at 594-5 (emphasis added). 99

number of Hungarian refugee claimants has reduced dramatically. From January to December 2001, there were 4,161 Hungarian asylum cases, whereas between January and December 2002, there were only 335. As the acceptance rate for these claimants was only 12 percent, the imposition of a visa requirement has saved Canada considerable resources in dealing with unjustified claims.

Let us assume for the sake of argument that these numbers are accurate, and that the visa requirements imposed on Hungarian nationals prevented 3826 asylum seekers from reaching Canada in 2002, of whom approximately 12% would have acquired refugee status if they had been able to secure passage. It is simple to calculate that the "savings of considerable resources in dealing with unjustified claims" to which the above comments refer, come at the expense of at least 459 Hungarian asylum seekers who would have been entitled to protection under Canada's refugee determination system. These 459 Hungarians, of course, represent only a miniscule proportion of the total number asylum seekers prevented from coming to Canada through these programs. But I take it my point is clear: even where the visa requirement / carrier sanction regime targets groups with low claim grant rates (i.e. "bogus asylum seekers"), "savings" in processing costs inevitably come at the expense of the safety - and possibly the lives - of asylum seekers with well-founded claims.

It is worth emphasizing the key difference between employing a system of incentives that result in turning away would-be-"irregular migrants" at an airport check- in desk abroad, rather than turning that same person away at a customs examination desk in international airport arrival lounges of liberal affluent states: refugee claims - and the procedural and substantive protections that making such a claim entitles one to - cannot be made to airline staff abroad. Such staff, who are effectively deputized

Citizenship and Immigration Canada, Public Safety and Anti-Terrorism: Final Report (Ottawa: CIC, 2003) [CIC, "Public Safety"] at 4.2.' ' See my discussion of Singh, supra note 32, and accompanying text. I have made repeated requests to Air Canada for copies of their policies with respect to persons who allege a fear of persecution when they are refused boarding due to concerns regarding the validity of their travel documents. Air Canada has not responded to any of these requests. It is interesting, however, to note that - outside the refugee setting - carriers have been successfully sued by individual passengers holding valid documents who were nevertheless denied boarding because the carriers' staff was not convinced that they were indeed genuine. Tiwaah v. KLM Dutch Airlines, [1998] O.J. No. private border guards charged with scrutinizing passengers' claims to entry into the destination state, are therefore employed as a kind of insulating barrier between states and asylum seekers. This "insulating barrier" is designed to allow the state to police migrants' claims to lawful presence without incurring the obligations that result when the state and migrants come into direct contact. ~

If such insulatory strategies weren't sufficiently troubling on their own, the situation is worsened by the fact that the visa requirement / carrier sanctions regime is replicated by practically all liberal states. The overall effect of these combined barriers is to ensure that most asylum seekers will remain either in the country of persecution, or - if they are lucky - in countries of asylum adjoining their country of persecution. With respect to the latter, adjoining countries of asylum are often hypocritically pressured (though not always successfully) by liberal affluent states into keeping their borders open to asylum seekers, generally on the grounds that they are required to do so by the 1951

1338 (Ont. CA). NGOs and lawyers concerned that airlines are likely to engage in racial, national and class profiling practices in order to minimize their exposure to carrier sanctions (i.e. heightened scrutiny of groups of persons perceived to be statistically likely to be involved in irregular migration) might usefully employ this precedent to put further pressure on airlines to invest resources into publicly and politically resisting the carrier sanctions regime. 128 This is far from the only example of states using transportation companies as insulating barriers between the state and unwanted migrants. The infamous 1907 Continuous Journey Regulation, for example, imposed a requirement that migrants to Canada come directly from their country of citizenship without transiting through other countries. This restriction was aimed explicitly at preventing immigration from British India - whose subjects could not be directly excluded due to their status as subjects of the British Empire - by taking advantage of the fact that there was, at the time, no direct passage from India to Canada. This regulation forms the backdrop for the infamous Komagata Maru Incident. For an excellent review of that low point in Canadian migration history, see Ali Kazmi's recent documentary, Continuous Journey (Canada, 2004). For a more general discussion of the role of transportation companies in the history of Canadian migration policy see T. Williams, The Role of Transportation in Immigration 1900-2000 (Ottawa: Citizenship and Immigration Canada, 2001) (online: http://www.cic.gc.ca/english/department/transport/index.html). 129 The International Organization for Migration has produced as series of excellent reviews of the use of carrier sanctions around the world. See e.g. IOM, International Comparative Study on Migration Legislation and Practice (Dublin, [Ireland] Government Publication, 2002) (online: http://www.iustice.ie/80256E010039C5AF/vWeb/flJUSO5XFGNA- en/$File/intstudyom.pdf) (accessed: 18 September 2005), see especially at 104. Convention. This means that refugees will, for the most part, be restricted to or "contained" within those states in the developing world that can least afford to provide for them. It goes without saying, that these same locales are also the least visible and least accessible to those with superfluous resources who might otherwise be prompted to offer (or shamed into offering) assistance.

2.3.4. Non-Entree Strategies: Enforcing Visa Requirements & Carrier Sanctions

Let us now consider other non-entree strategies used to bolster the carrier sanction / visa requirement regime through which states attempt to insulate themselves against asylum seekers. Whether fleeing persecution or simply seeking security and economic prosperity, "irregular migrants" go to great lengths to circumvent the visa requirement / carrier sanction regime. The two most common means of doing so is to procure false travel documents or to embark upon unlawful modes of transportation. This leaves both states and irregular migrants constantly attempting to stay one-step ahead of the other. States attempt to devise ever more sophisticated means of detecting and preventing the arrival of unwanted irregular migrants. Irregular migrants and the so-called "human smugglers" to whom they turn for assistance predictably respond with new (not to mention more expensive and dangerous) means of getting around these barriers. To take

See generally, UNHCR, Global Refugee Trends: Overview of refugee populations, new arrivals, durable solutions, asylum seekers, stateless and other persons of concern to UNHCR (Geneva: UNHCR, 2005) (online: http://www.unhcr.ch/cgi- bin/texis/vtx/events/opendoc.pdf?tbl=STATISTICS&id=42b283744) (accessed: 18 September 2005) at 1f 9 & 17: Africa and CASWANAME [Central Asia, South-West Asia, North Africa and Middle East] each hosted almost 30 per cent of the global refugee population at the end of 2004. Europe hosted 25 per cent of all refugees, followed by Asia and the Pacific (9%), and the Americas (7%). [...] Eleven asylum countries reported the arrival of more than 1,000 prima facie refugees during 2004, including Chad (131,000), Burundi (20,700), Yemen (16,600), Uganda (15,500), Rwanda (14,100), the Syrian Arab Republic (12,000) and Liberia (5,500). 1 ~\ I For an excellent discussion of the many different ways migrants successfully circumvent the visa requirement, carrier sanction regime see P. Martin, "Bordering On Control: Combating irregular migration in North America and Europe" (2003) 13 IOM Research Series (online: http://www.iom.int/documents/publication/en/mrs%5F13%5F2003.pdf) (accessed: 18 September 2005). just one example, consider the following description of the ongoing cat-and-mouse games along the United States' southern border: During the past 10 years, the overwhelming emphasis in US immigration policy has been on border enforcement, primarily on the US-Mexican border. Congress has more than tripled spending for border enforcement activities since 1993, despite evidence that this unprecedented border build-up has failed to deter significant numbers of unauthorized migrants from attempting entry.

At the same time, some major unintended consequences have materialized, including more than 2,640 border crossing-related deaths - 10 times more lives than the Berlin Wall claimed during its 28-year existence [...] The southwest border enforcement build-up did, indeed, make illegal entry more costly, difficult, and dangerous for Mexican immigrants. However, there is no convincing evidence that it has reduced either the stock or the flow of unauthorized migrants from Mexico. [...]

As border control has tightened, a higher percentage of migrants have sought assistance from people-smugglers (US policy has made them indispensable to a safe crossing), and the smugglers' average fee has more than tripled since 1993, to $1,500-2,000 per head. Smugglers, however, have not yet priced themselves out of the market. Rather, US-based relatives of would-be unauthorized migrants have just dug deeper into their pockets to help finance the trip.

The two most important tools in the arsenal currently available to states in this ever- escalating cat and mouse game regarding irregular migration are "interception" and "interdiction" programs.

2.3.5. Non-Entree Strategies: Interception

Interception programs aim to reinforce the efforts (induced by carrier sanctions) that transportation companies undertake to detect and deny passage to "irregular migrants". 3 The particular techniques deployed include:

W. Cornelius, "Evaluating Enhanced US Border Enforcement" (Washington: Migration Policy Institute, 2004) (online: http://www.migrationinformation.org/feature/display.cfm?ID:=223) (accessed: 21 September 2005). 1 Citizenship and Immigration Canada, Review of the Immigration Control Officer Network - Final Report (Ottawa: CIC, 2001) (online: http://www.cic.gc.ca/english/research/audit/ico/index-e.html) (accessed: 19 September 2005) [CIC, "Final Report"] at Chapter 2: • programs to train transportation company staff in procedures that can be used to effectively detect increasingly sophisticated false documents; • establishing lines of communication to enable destination state government officials to review (prior to boarding) any travel documents reported as suspect by transportation company staff, whether in person or via modern electronic 135 means; • posting immigration officers abroad in points of transit that generate large flows of refugee claimants in order to directly screen passengers, in some cases not only with the aim of identifying those attempting to travel without valid travel documents, but also with the subsidiary aim of denying passage to those who belong to a demographic thought likely to make refugee claims but who cannot, for a variety of reasons, be excluded through the visa program;136

[T]he ICO Network was established in 1989 [...]to obtain additional resources to address the increasing role of immigration control, enforcement liaison and intelligence functions at missions in all parts of the world. These resources were to help Canada deal with the following issues: • an influx of illegal migrants and bogus refugee claimants into Canada, who often arrived without documentation or with fraudulent documents; • the growth, under intense demographic pressures, of economically and socially disadvantaged Third World populations around the globe seeking places of residence in developed countries, including Canada; • security problems accompanying the influx of illegal migrants and bogus refugee claimants into Canada; and • the challenge of illegal migration, both as a foreign policy and as a domestic policy issue. 13 Ibid, at Chapter 3.2 ("The duties of an ICO are as follows: [...] Providing training for airline staff or designates in document examination and in verification of Canadian travel documents and visas"). 135 Ibid, at Chapter 3.8: ICOs provide varied support to airlines, including responses to telephone inquiries, for which ICOs are continually on call. Often, these requests are made when passengers are boarding and airline employees have questions concerning the appropriateness of the travel documentation or need guidance on how to deal with a particular situation. 136 This practice was actually pioneered in Canada in the form of a program entitled "Operation Shortstop" that Citizenship and Immigration Canada developed in the early 1990s. D. Matas, "The Universal Declaration of Human Rights: Fifty Years Later" (2000) 46 McGill L.J. 203 at 212. Similar programs now exist in the US, see e.g. U.S. • engaging in intelligence activities both within and outside the territorial jurisdiction of the destination state in order to obtain information about the latest techniques in the production and use of false documentation and other means of circumventing visa requirements;137 and, • liaising with law enforcement, security, and intelligence agencies in source countries in order to counteract the efforts of human smuggling and trafficking networks.138

Customs and Border Protection, Press Release, "U.S. and Poland Sign Agreement to Begin Screening Program at Warsaw Airport" (8 September 2004): Passengers who are found to have defective documents while still in Warsaw [...] will be informed that they will likely be deemed inadmissible and denied entry upon arrival in the U.S. U.S. Customs and Border Protection (CBP) officers will then advise both the passenger and the airline, saving the passenger the inconvenience and expense of being denied entry. It is interesting that this particular program was established at the request of the Prime Minister of Poland as a means of removing US visa requirements for Polish citizens. See White House, Press Release, "President Bush Meets with Prime Minister Belka of Poland" (9 August 2004): Q Mr. President, when is the United States going to lift visas for Polish citizens, or at least this $100 fee for visas — as a gesture of reciprocation? PRIME MINISTER BELKA: We discussed this. PRESIDENT BUSH: Well, I'll tell you, we sure did discuss it and the Prime Minister was very strong on the subject. He made it very clear what — what his opinion is, and the opinion of his government, and the expectations of the Polish people. And because of his persuasiveness, there's now a pre-clearance procedure that will be taking place at the Warsaw airport. Secretary Tom Ridge is — Ridge is here today, and he'll be given instructions to accommodate the Prime Minister's wishes that we begin a reform of the process. And it will start with pre-clearance process. In a similar vein, the UK established a "pre-clearance" procedure to prevent the arrival of persons perceived to be likely to make a refugee claim on arrival, but who, because of their citizenship in an EU state, cannot be denied passage through the visa requirements / carrier sanctions regime. See e.g. Regina v. Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others, [2004] UKHL 55 (holding that prescreening clearance practices aimed at preventing Czech citizens with Roma backgrounds from boarding planes heading towards the UK constituted a prohibited form of discrimination under the Human Rights Act). 137 CIC, "Final Report", supra note 133 at Chapter 3.2 ("The duties of an ICO are as follows: [...] "Gathering, analysing and disseminating information on inadmissible passengers (for example, information on demographics, mass migrations, illegal migration trends and routes, and host government enforcement initiatives and policies)"). | "JO Ibid, at Chapter 3.2 ("The duties of an ICO are as follows: [...] Developing and maintaining networks of contacts in the host country among immigration and customs In the Canadian context, these programs have long been a favourite topic of political announcements by officials hoping to demonstrate to the public that the government is taking proactive stance in protecting the countries borders.139 Consider, for example, this recently issued official description of Canada's interception programs: The Immigration Intelligence network has 45 Migration Integrity Officer (MIO) positions located in key locations overseas to work with other government departments, international partners, local immigration and law enforcement agencies and airlines to combat irregular migration, including people smuggling and trafficking. The work of these officers has resulted in an interdiction rate of 72% in 2003. This means that of all those attempting to travel to Canada by air, using improperly issued documents, 72% (more than 6,400 individuals) were stopped before they got to Canada. In addition these officers have maintained a steady flow of key intelligence information which allows us to continually enhance the integrity of Canada's immigration program.14

While it is not entirely clear what is meant by the figure of 72% in this quotation,141 what is clear is that significant numbers of persons attempting to come to Canada are being turned away through these interception techniques. Between 1996 and 2002, for example, the Canadian government estimates that over 40,000 irregular migrants were intercepted through these programs. What is not just unclear, but entirely (and intentionally) officials, police authorities, airport security staff, intelligence agents, political contacts and so on"). 139 See CIC, "Public Safety", supra note 125 at 4.2. Even prior to the events of September 11, 2001, the Canadian Immigration Control Program was very effective, achieving a 65 to 70 percent rate of interception of improperly documented arrivals with 44 immigration control officers overseas. [...] In line with the Department's Multiple Borders Strategy, all overseas officers are now expected to participate in anti-fraud efforts and assist in the development of intelligence. Migration Integrity Officers provide leadership and expertise to other officers on these issues and are credited for their "spectacular success in interception", (emphasis added) 140 Canada Border Services Agency, "Fact Sheet" (January 2004) (online: http://www.cbsa-asfc.gc.ca/newsi'oom/factsheets/2004/0128migration-e.html) (accessed: 9 September 2005). 141 How, for example, is the total number of persons attempting to come to Canada using false documentation calculated given that successful uses of false documentation often would not come to the attention of the authorities? 1 A. Brouwer & J. Kumin, "Interdiction and Asylum: When Migration Control and Human Rights Collide" (2003) 31:4 Refuge 6 [Brouwer & Kumin, "Interdiction"] unknown, is the proportion of these irregular migrants that were asylum seekers.143 Obviously, what happened to these asylum seekers after they were turned away is also unknown.144

It is interesting to note that as with its carrier sanctions program, Canada has been something of an innovator in the area of interception.145 In fact, states around the world

See e.g. A. Duffy, "False travel papers curtailed: Tighter security checks overseas credited with cutting fraudulent claims" in The National Post (online ed) (December 28, 2004): Federal statistics, obtained by the Ottawa Citizen, show that last year 72% of travelers who attempted to board planes with false documents were stopped at airports overseas. [.. .]The number of people claiming refugee status in Canada has dropped since the introduction of the new overseas security measures in 2000. That year, 30,075 people claimed refugee status in Canada. The numbers fell to 27,910 in 2001; 25,122 in 2002 and 25,981 in 2003. See also, CIC, "Final Report", supra note 133 at chapter 2 ("The ICO Network's tasks are as follows: [...] reduce the flow of illegal migrants and bogus refugee claimants into Canada"). 144 Some NGOs working in the migration context, including the Canadian Council for Refugees, have made calls for attempts to trace the consequences as these interception policies on the lives of particular individuals who are turned away, in order to give a human face to the suffering inflicted by such policies. For a discussion see Crepeau & Dench, "Interdiction", supra note 115 (see especially n.l, and accompanying text). As we will see in my concluding Chapter, the link between the manipulation of presence within a territory, visibility and responsiveness to the needs of non-citizens is central theoretical and strategic challenge. 5 See e.g. Minister of Citizenship and Immigration Canada, "Expenditure Plan for the Department of Citizenship and Immigration Canada, 1997" (Ottawa: CIC, 1997): [CIC is] a world leader in developing interdiction strategies against illegal migration. Interdiction consists of activities to prevent the illegal movement of people to Canada, including application of visa requirements, airline training and liaison, systems development, intelligence-sharing with other agencies, and specific interdiction operations. CIC has also developed an Immigration Control Officer (ICO) network dedicated to the control function. The Canadian network is helping other countries develop similar networks. See also, at Auditor General of Canada, Report of the Auditor General: Citizenship and Immigration Canada - Control and enforcement (Ottawa: Auditor General, 2003) (online: http://www.oag- bvg.gc.ca/domino/reports.nsf/html/20030405ce.html) (accessed: September 19, 2005) at 5.33 ("Representatives from other countries told us that they consider the Canadian immigration control officer position to be a model"). have not only adopted similar interception programs, but have also followed Canada's lead on another type of non-entree strategy to which we will now turn: interdiction.

2.3.6. Non-Entree Strategies: Interdiction

Interdiction involves the use of armed force to turn away would-be irregular migrants. In fact, it is the very success of visa requirement / carrier sanctions and interception strategies that lead to the circumstance in which interdiction programs become necessary. The central limitation of the carrier sanction regime is that it only works with regard to legally operating transportation companies. This leads asylum seekers and other unwanted migrants, who are strongly motivated to travel to a particular state but are unable to secure passage with lawful transportation companies, to resort to illegal148 means of transportation. Such means of transportation include embarking on ships that attempt to gain access to the territory of the state undetected, without proceeding through a port of entry. Interdiction programs aim to cut off this means of circumventing the visa requirement program by using naval force to prevent the arrival of such ships. As I will be going over in some detail a particular incident involving interdiction in Australia, I will only outline some of the more common interdiction programs here, and leave a more thorough assessment to the next section.

For details of interdiction practices around the world see generally, A. Sianni, Interception Practices in Europe and their Implications" (2003) 21:4 Refuge 25; J. Howard, "To Deter and Deny: Australia and the interdiction of asylum seekers (2003) 21:4 Refuge 35; UNHCR, "Interception of Asylum Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach" (Geneva, EC/50/SC/CRP.17). 147 For discussions of different possible definitions of interdiction, see Brouwer & Kumin, "Interdiction", supra note 142; B. Miltner, "Irregular Maritime Migration: Refugee Protection Issues in Rescue and Interception" (2006) 30 Fordham Int'l L.J. 75. 148 See IRPA, supra note 56, s.117 ("No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act"), s.l 19 ("A person shall not disembark a person or group of persons at sea for the purpose of inducing, aiding or abetting them to come into Canada in contravention of this Act") and s. 148 ("A person who owns or operates a vehicle or a transportation facility [...] must, [...] not carry to Canada a person who is prescribed or does not hold a prescribed document, or who an officer directs not be carried"). In recent years, states around the world have increasingly resorted to armed force on the high seas as a method of turning away migrants who attempt to circumvent the visa requirement / carrier sanction regimes. Canada contributed to the revival of this practice by establishing a precedent in 1998 when it "successfully" interdicted a ship off the African coast bearing asylum seekers from Sri Lanka heading to Canada. Canadian officials intercepted the ship and escorted it back to Sri Lanka, without permitting any of those on board to make refugee claims. Many of these claims would have likely been accepted, given that the Canadian recognition rate for refugee claimants from Sri Lanka in 1998 was 74.3%. In fact, one of the interdicted Sri Lankan asylum seekers is known to have been tortured on return.150 It is worth noting that notwithstanding this incident, Canada does not attempt to interdict vessels that are detected within Canadian territorial waters, and instead allows the passengers of such ships to come to shore and to make refugee claims. 51 Of course, as should be evident from my discussion of Singh above, this practice is probably required under s.7 of the Charter, which applies once migrants reach Canada's territory - presumably including Canada's territorial seas.152 Courts have not clearly established, however, whether Canadian authorities can, in conformity with the Charter, engage in interdiction practices outside its territorial waters but within its 200-mile Exclusive Economic Zone - or for that matter, anywhere in the world outside Canadian territorial seas.154

U.N.H.C.R., Refugees and Others of Concern to UNHCR - 1998 Statistical Overview (1999) (online: www.unhcr.org/statistics) (accessed: 21 September 2007) at 78. 150 Macklin, "Borderline", supra note 46 at 385; S. Aiken, "Manufacturing Terrorists: Refugees, National Security and Canadian Law" (2001) 19(4) Refuge 116 at 124. 151 Macklin, "Borderline", supra note 46 at nl 1 (noting that a handful of ships bearing irregular migrants have been allowed to land after being discovered within Canada's territorial seas in the past 15 years). 1 S9 Singh, supra note 32 at f 35 (holding that s. 7 of the Charter applies to everyone physically present in Canada). 153 See e.g. R v. Alegria (1992), 96 Nfld. & P.E.I.R. 128 (Nfld. C.A.) (applying, without comment, a s.7 Charter analysis to a set of events involving charges being laid against the captain of a Spanish fishing trawler for events that occurred outside Canada's territorial seas but within the 200-mile EEZ). 154 D. Galloway, "The Extraterritorial Application of the Charter to Visa Applicants" (1991) 23(2) Ottawa L.R. 335: Wilson J. raised the issue of physical presence [in Singh] only because those who are in Canada are amenable to Canadian law. It was this latter factor that was a salient one. Signh had a cause of action because he was subject to Canadian law. The more reasonable extrapolation from her While the Canadian interdiction of the Sri Lankan asylum seekers established a significant precedent, it was neither the most influential nor the most widely discussed interdiction practice. That distinction - at least in North America - goes to the U.S. Coast Guard's interdiction activities on the high seas involving Haitian asylum seekers en route to the United States. This interdiction program was established through an unprecedented agreement between the US and Haitian governments in 1981, which authorized U.S. officials to board Haitian ships apparently destined for the United States. The purpose of such boardings was to interview passengers to determine if any would be likely to succeed in refugee claims if they were allowed to proceed to the United States. Those determined to have weak claims were forcibly returned directly to Haiti.155 Notice that under this arrangement, passengers on interdicted vessels were entitled - at least notionally - to a cursory screening of the credibility of their expressed fears of persecution. Moreover, the practice of boarding the vessels could be justified in international law of the sea as being authorized through the agreement of the flag state of the ships.156 Both of these features distinguish, in principle, the initial US interdiction practice from the later Canadian interdiction of the Sri Lankan asylum seekers in 1998.157 On a more practical level, however, the opportunities for establishing credible fear were extremely limited. Between 1981 and 1991, for example, only 11 of the approximately 22,000 interdicted asylum seekers were deemed to have established a credible fear of persecution and were therefore brought to the United States to have their asylum claims

precise words is that everyone who is amenable to Canadian law, whether or not they find themselves in Canada, is embraced by the relevant sections of the Charter. But see, contra, P. Hogg, Constitutional Law of Canada, Student Ed. (Toronto: Caswell, 2000) at 692 ("A majority of the Court [in R. v. A, [1990] 1 S.C.R. 995] seems to have held that even persons outside Canada are entitled to Charter rights. This Entitlement must surely be restricted to citizens") (emphasis added). 155 Agreement Effected by Exchange of Notes, Sept. 23, 1981, U.S.-Haiti, T.I.A.S. No. 10,241, at 3559. 156 See generally H. Koh, "America's Offshore Refugee Camps" (1994) 29 U. Rich. L. Rev. 139 [Koh, "Offshore"]. 157 Where the flag state of a ship does not consent to such boarding, the practice could arguably constitute an act of war. Indeed, proposals by the Minister of Citizenship and Immigration Canada to interdict vessels without securing the permission from the state from which the ship hails were critiques as being akin to "piracy". Humphreys, "Piracy", supra note 105. 110

1 fO heard. Moreover, the US later reversed its position on "credible fear" screenings in 1992. At that time, President Bush (Sr.) issued an executive order authorizing the US Coast Guard to return all interdicted Haitians to Haiti without offering them any opportunity to make a refugee claim whatsoever. 5 This practice was then upheld by the US Supreme Court.160

The US practice of interdicting Haitian asylum seekers - which continues to this day - has been sharply criticized. It nonetheless established an important precedent and provided discursive ammunition to advocates of harsh border control policies around the world.163 Moreover, I cannot resist pointing out that jurisprudence upholding the

158 Koh, "Offshore", supra note 156 at 141-142. 159 Ibid. atl46ff. Sale, supra note 88. 1 See e.g. R. Swarns, "Advocates for Immigrants Scorn Bush Policy on Haitian Refugees" in The New York Times (27 February 2004) A4: Advocates for immigrants, and more than two dozen Democrats in Congress, criticized the Bush administration on Thursday for continuing to return Haitian migrants to a country in turmoil as government officials warned that the number of Haitians taking to the seas had begun to surge. Coast Guard officials said they had picked up 695 Haitians at sea this month, including a freighter carrying 21 Haitians that was stopped seven miles off Miami on Wednesday. [...]Officials said about 500 migrants were being held aboard Coast Guard cutters on Thursday and would be sent back to Haiti on Friday. At least three people, who expressed fear of persecution in Haiti, have been sent to the American naval base at Guantanamo Bay, Cuba. The rest have been returned to Haiti. (Emphasis Added) 16 For a critique of the US interdiction of Haitian asylum seekers as well as the US Supreme Court decision, see H. Koh, "The Haitian Refugee Litigation: A Case Study in Transnational Public Law Litigation" (1994) 18 Md. J. Int'l L. & Trade 1; H. Koh, "The Haitian Centers Council Case" (1994) 35 Harv. Int'l L.J. 1; H. Koh, "Refugees, the Courts and the New World Order" (1994) Utah L. Rev. 999; H. Koh, "Bringing International Law Home" (1998) 35 Hous. L. Rev. 623; H. Koh, "The Spirit of the Laws" (2002) 43 Harv. Int'l L.J. 23; H. Koh, "The Case Against Military Commissions" (2002) 96A.J.I.L. 337. 163 This result was not unexpected. See e.g. J. Morris, "The Spaces in Between: American and Australian interdiction policies and their implications for the refugee protection regime" (2003) 21(4) Refuge 51 [Morris, "In-Between"] at 53: One of the many criticisms levied by human rights advocates over the course of Haitian intervention was that America was setting a negative example for other countries and that refugee protection could suffer exponentially as a consequence. Of special importance to the legal Ill interdiction as well as the "temporary" housing of Haitian asylum seekers with "credible fears" in an overseas US Naval Base was the precedent upon which the current Bush (Jr.) administration relies to justify the ongoing detention of suspected terrorists at this same - now infamous - naval base: Guantanamo Bay.165

I will not go on here to list the interdiction efforts of other states - beyond noting that many states employ interdiction programs.166 Instead, I would like now to move to an examination of how states, pleased with the results of their displacements of border control to sites where migrants cannot access a number of legal rights (especially the right against refoulement) have realized that the ability to access these rights is not actually a matter of physical presence on the territory. Rather it is a question of the legal recognition of the presence of particular migrants on state territory. Indeed, in a move

community was the legitimizing of the treatment of Haitians through the resounding victory of the state in Supreme Court case Sale v. Haitian Centers Council. 164 Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1513 n.8 (11th Cir.), cert, denied, 502 U.S. 1122 (1992) (holding that the notion that the Bill of Rights offers protections to Haitian non-US citizens held by the United States at Guantanamo Koh was "nonsensical"), and cited with approval in Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1424-25 (11th Cir.), cert, denied, 116 S. Ct. 299 (1995). For a critique, see Koh,"Offshore", supra note 156 at 143-144; G. Neuman, "Anomalous Zones" 48 Stan. L. Rev. 1197 at 1228ff. 165 See e.g. G. Neuman, "Closing the Guantanamo Loophole" (2004) 50 Loy. L. Rev. 1 at 3: The Eleventh Circuit's [...] decisions [with respect to the Haitian asylum seekers] remained as precedents, which encouraged the government to treat Guantanamo as an "anomalous zone," a geographical enclave in which fundamental legal norms do not apply. This fact apparently influenced the government's decision to select Guantanamo as a detention site for suspects arrested abroad in the "war on terrorism", (emphasis added) See generally N. Coleman, "Non-Refoulement Revised: Renewed review of the status of the principle of Non-Refoulement as customary international law" (2003) 5 European Journal of Migration and Law 23; F. Crepeau, "International Cooperation on Interdiction of Asylum Seekers: a global perspective" (1998) (online: www.web.net/~ccr/intercrepeau.htm) (accessed: 29 July 2004); UNHCR, "Interception of Asylum Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach " (Geneva, EC/50/SC/CRP.17); Morris, "In-Between" supra note 163; Brouwer & Kumin, "Interdiction", supra note 147. eerily similar to the notorious distinction between human beings and legal persons and between human beings and "men", states have capitalized on the potential distinction between physical and legal presence to literally redraw the legal boundaries of their territorial jurisdictions. The aim of redrawing these boundaries is, once again, to limit the ability of unwanted migrants to access legal rights. It is to a discussion of these efforts to literally redraw borders that we will now turn.

2.4. Redrawing the Lines: Partial Excision & Other Legal Fictions

In recent years, liberal affluent states concerned with perceived increases in "irregular migration" that successfully circumvents the non-entree policies discussed in the preceding section began to turn to a number of strategies designed to restrict access to rights normally associated with physical presence on state territory. The most dramatic of these strategies is the literal excision of pieces of the landmass from state territory for the limited purposes of migration law. The most spectacular manifestation of such an excision strategy flows out of Australia's response to the MV Tampa Incident. In this section I will discuss in some detail the Australian government's responses to this Incident before moving on to briefly outline how this response resembles the less draconian attempts by other states to achieve similar results.

2.4.1. The MV Tampa Incident: The Facts

Wl Edwards v. A.G. for Canada, [1930] A.C. 124 (P.C.) (holding that women are "persons" for the purposes of s.24 of the Constitution Act, 1867), rev'g the Supreme Court of Canada in In the matter of a Reference as to the Meaning of the Word "Persons" in Section 24 of the British North America Act, 1867, [1928] S.C.R. 276. 168 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) (holding that the term "men" in the Declaration of Independence and other constitutional instruments does not include "negroes"). 113

The cases that emerged from the now infamous MV Tampa Incident,170 read rather like novels.17 On August 26l\ 2001, a small wooden ship was sinking less than 150km from Christmas Island, an Australian island just off the north coast of the main landmass. Onboard the ship were 433 Afghanis making their way to Australia.172 The aim of their long and dangerous journey was to circumvent Australia's visa requirement / carrier sanction regime. They sought to make landfall in Australia (without holding the requisite visas) with the intention of launching refugee claims on their arrival.173 These claims were likely to have been accepted considering the civil war then raging in Afghanistan and the excesses of the Taliban regime.174

A passing tanker, the MV Tampa, licensed to carry no more than 50 passengers, rescued the people from the sinking ship at the request of Australian authorities who had received a distress call. When the would-be refugee claimants (hereinafter "rescuees", following the Federal Court's awkward attempt at "neutral" terminology) were rescued, the Captain of the MV Tampa asked the Australian Coast Guard where he should take them. The Coast Guard replied that they ought to be returned to Indonesia (their last state

,w [2001] FCA 1329; 110 F.C.R. 452 (F.C.A.) [Ruddock 11], overturning Victorian Council for Civil Liberties Inc. v. Minister for Immigration and Multicultural Affairs • (2001), 110 F.C.R. 452 (F.C.) [Ruddock I]. See also Ruhani v. Director of Police, [2005] HCA 42 [Ruhani 7] and Ruhani v. Director of Police [No 2], [2005] HCA 42, [Ruhani IT]. 170 See e.g. I. Khan, "Trading in Human Misery" (2003) 12 Pac. Rim L. & Pol'y 9; S. Goodwin-Gill, "Refugees and Responsibilities in the Twenty-First Century: More lessons learned from the south pacific" (2003) 12 Pac. Rim L. & Pol'y 23; M. Crock, "In the Wake of Tampa: Conflicting Visions of International Refugee Law in the Management of Refugee Flows" (2003) 12 Pac. Rim L. & Pol'y 49; D. Rothwell, "The Law of the Sea and the MV Tampa Incident: Reconciling Maritime Principles with Coastal State Sovereignty" (2002) 13 Pub. L.R. 118; C. Lopez, "Australian Immigration Policy at the Centenary: The Quest for Control" (2003) 18 Geo. Immigr. L.J. 1. I 7 I The Australian judicial system, keeping pace with modern technology, has made a summary of the judgment, read by Chief Justice Black available online. (Online: http://www.fedcourt.gov.au/iudgments/videojdg.html (last access: September 9, 2005)). Listening to the judgment evokes a curiously similar sensation as listening to an audio book. 17 Ruddock II, supra note 169 at ^f 131. 173 Ibid, at 1137. 174 In 2001, the average protection rate around the world for persons fleeing Afghanistan was 76%, a rate that was surpassed only by Liberia and Senegal. UNHCR, UNHCR Statistical Yearbook 2001 (Geneva: UNHCR, 2002) at 54. Ruddock II, supra note 169 at T[ 131. 114

of transit), and that they were in no circumstance to be brought to Australia. When the Captain set a course for Indonesia, however, several of the rescuees threatened to throw themselves overboard. The Captain responded by sailing towards the nearest land: Christmas Island.176

Australian naval authorities intercepted the ship as it neared the boundaries of the Australian territorial seas. The Australian authorities insisted that the ship remain outside Australian seas and informed the Captain that the local port had been closed to all

i n-i traffic. By this point, however, the Captain had assessed the state of health of those onboard, concluding that several of the rescues were injured, in poor health, and malnourished. He further determined that the ship did not carry sufficient medical supplies, food, or water to make a journey across the high seas safely. The Captain thus refused to sail to Indonesia. This resulted in a two-day standoff, during which the MV Tampa remained 0.5 nautical miles off Australian territorial waters.178

On the morning of August 29th, the Captain communicated to the Australian authorities the following message: "As discussed at approximately 11:30 today, the medical situation on board is critical. If it is not addressed immediately people will die

1 7Q shortly." When he received no response from the authorities, the Captain citing health and safety concerns, brought the MV Tampa into Australian territorial waters near the shores of Christmas Island.180 Within two hours of this move, 45 Special Armed Services ("SAS") troops boarded the MV Tampa and took control of the ship to prevent it from coming to port.181

Later that evening, in an emergency session, the Australian House of Representatives passed the Border Protection Bill, 2001 ("the Bill"), which was intended

Ibid, at T] 132. Ibid, at If 133-134. Ibid, at 1132. Ibid, at f 135. Ibid, at 1136. 115 to retrospectively authorize the actions of the SAS troops, thereby providing a statutory basis for the removal of the ship from Australia's territorial seas. A second major aim of the Bill was to remove jurisdiction from any court that might otherwise seek to review the legality of such actions or to delve into issues of any rights the rescuees might enjoy under refugee law.184 While the Bill was defeated in a highly contentious vote in the

1 Of Senate in the early hours of the following morning, the Bill clearly indicated the executive's preferred means of resolving the MV Tampa conflict: by deploying military force to expel the rescuees from Australia before they could make refugee claims or otherwise gain access to the Australian legal system, irrespective of the consequences such a measure might have for those on board.

On August 31st, the Victorian Council of Civil Liberties and an individual Australian lawyer brought separate ex parte habeas corpus actions in Federal Court, seeking injunctions preventing the Australian government from removing the ship from Australian territorial waters, and an order requiring that the government allow the rescuees to land in Australia.

See especially s. 2 ("This act is taken to have commenced on 29 August 2001 at 9.00 am by legal time in the Australian Capital Territory"). 1 8^ See especially s.4(l) ("An officer may, in his or her absolute discretion, direct the master or other person in charge of a ship that is within the outer limits of the territorial sea of Australia to take the ship, and any person on board the ship, outside the territorial sea") and s.5 ("Where a direction has been given under section 4, an officer may detain the ship, and take it, or cause it to be taken, outside the territorial sea of Australia. For this purpose, reasonable means, including reasonable force, may be used by the officer or another person"). 1 84 See especially s. 7(1) ("Proceedings, whether civil or criminal, may not be instituted or continued against the Commonwealth in respect of action taken under section 5 or 6"), s.8 ("Proceedings may not be instituted or continued by any person in any court to prevent a ship, or any persons on board a ship, being removed to a place outside the territorial sea of Australia pursuant to a direction given under section 4"), and s. 9(1) ("Any application for a protection visa under the Migration Act 1958, made by a person who is on board a ship at the time when a direction is given under section 4 in respect of the ship, is not a valid application"). 185 See "Senate Daily Summary" (No. 67/2001) (29 August 2001) (online: http://www.aph.gov.au/Senate/pubs/daily/2001/29aug01.pdf (accessed: 9 September 2005). Ruddock I, supra note 169 at ^[2-5. 116

2.4.2. The MV Tampa Incident: Federal Court (North J)

Upon hearing initial arguments Justice North of the Federal Court ordered an interim injunction preventing the government from removing the rescuees from Australian territorial seas until the main actions could be heard. This ex tempore order was granted on the basis that it was, in the circumstances, a necessary measure to prevent the government from depriving the Court of jurisdiction over the rescuees by moving them out of the Australian territory.187

The following day, September 1st, lawyers for the government announced to the Court that the Prime Minister had reached an agreement with the governments of New Zealand and Nauru as well as with the International Organization for Migration and the United Nations High Commissioner on Refugees ("UNHCR"). This agreement set out procedures for transferring the rescuees to newly established foreign processing centres, where their refugee claims would be processed by the UNHCR. Because the Australian federal government wished to begin the transfer as soon as possible, government lawyers asked that the Court proceed with a final hearing on the main action immediately. To expedite this hearing, the parties came to an agreement involving a set of undertakings allowing for the transfer of the rescuees, subject to the condition that, should the Court subsequently find in favour of the applicants in the main actions, the rescuees would be returned to Australia. On the basis of these undertakings the rescuees were transported - without securing their consent - to New Zealand and Nauru. As the rescuees were en route to New Zealand and Nauru, the main action proceeded, with hearings on September 2-5. The judgment was delivered on the morning of September 11th, 2001.189 Obviously, I emphasize timing because the judgment was delivered only a few short hours before the events later that day in New York.190

18/ Ibid, at 129. m Ibid, at 132. 189 Ibid, at 142. 190 S. Schmemann, "Hijacked jets destroy twin towers and hit Pentagon in day of terror: President vows to exact punishment for 'evil'" in The New York Time (12 September 2002) Al. 117

In keeping with the nature of the habeas corpus relief requested, Justice North's judgment proceeds in two steps: The ancient [habeas corpus] process involves two steps. The first step is the making of an order nisi for the issue of a writ of habeas corpus which requires the person holding the detainee to bring the detainee to the court and show cause why the detention is lawful. If, on the hearing, the detention cannot be justified the order nisi is made absolute and the court orders that the detainee be released.191

With respect to the first step, North J holds that the rescuees had been detained for the purposes of habeas corpus. Rejecting the argument made by the government that the rescuees were free to depart to any port of their choice outside of Australia, North J held that such any alleged "freedom" was illusory in the circumstances outlined by the Captain of the MV Tampa.192

This holding was somewhat unexpected in that it runs counter to the broad thrust of a long line of migration jurisprudence that has recently acquired a pithy moniker: the prison with three walls doctrine. This doctrine, broadly speaking, holds that "detention" for the purposes of deportation (and arguably for the purposes of preventing unlawful entry) entails less of an infringement of a person's liberty interest than other forms of detention such criminal detention. This view rests on two main arguments.

The first, which is often traced back to Vattel, is that states are said to be free, as a constitutive feature of their sovereignty, to determine which non-citizens will be excluded from their territories. As Vattel puts it: One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good • 1 • 1 • 194 government, or to its social or material interests.

191 Ibid, at 154. 192 Ibid. at\u. 193 This pithy term comes from A and others v. Secretary of State for the Home Department, [2005] 2 AC 68 (H.L.) at f 212. 194 E. Vattel, Law of Nations (Philadelphia: T. & J. W. Johnson, 1854) book 1, s.231. 118

The inference which is then drawn from state's purported "plenary" or "full" powers over aliens is that non-citizens do not have a general or "unqualified" right to enter or remain on the territory of a state. As such, reasonable administrative steps taken by states to achieve the exclusion of unwanted non-citizens, including detention for the purposes of returning them to their home state, cannot be said to violate the rights of the non-citizens in question.

The second argument is that where non-citizens who are not authorized to enter or remain on the territory of the state are detained for the purposes of removal or return, the detention is, in effect, self-imposed because the non-citizens could return to their countries of origin rather than "choosing" to remain in detention.

Taken together, these two arguments are said to establish the principle that physically constraining an individual for the purposes of removal and return constitutes a less serious infringement on liberty than we normally associate with criminal law detentions. Accordingly, detention for the purposes of removal or return attracts less stringent due process protections.196 While various strains of this doctrine are referred to at least in passing in virtually all cases resulting in the detention or deportation of non-

See e.g. Chiarelli, supra note 46 at 733 ("The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country"); Zadvydas v. Davis, 533 U.S. 678 (2001) at 720 ("We have 'long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.'"); Chu Kheng Lim v. Minister for Immigration (1992), 110 A.L.R. 97 ("The power to exclude or expel even a friendly alien is recognised by international law as an incident of sovereignty over territory"); Attorney-General for Canada v. Cain, [1906] AC 542 (P.C.) at 546 ("One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State"). See e.g. Carlson, et al. v. London, 342 U.S. 524 (1952) at 537 ("Deportation is not a criminal proceeding and has never been held to be punishment. No jury sits. No judicial review is guaranteed by the Constitution") cited with approval in Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1991) at 491; United States ex rel. Knauffv. Shanghnessy, 338 U.S. 537 (1950) ("Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned"); Chiarelli, supra note 46 at 736 (holding that deportation, on its own, is not a sufficiently serious infringement on a liberty to attract protections under s.7 of the Charter). 119

1 Q7 citizens, it must be said that each strain involves a distinction between forms of detention that is understandably lost upon many of those subject to immigration detention, who often find themselves sharing jail cells with criminal law offenders.

In spite of the prominence and pedigree of this line of reasoning, however, Justice North suggests that the prison with three walls doctrine is inapplicable where the agent of detention exercise total effective control over the detainees, as he found was the case in this instance: In my view the evidence of the respondents' actions in the week following 26 August demonstrate that they were committed to retaining control of the fate of the rescuees in all respects. The respondents directed where the MV Tampa was allowed to go and not to go. They procured the closing of the harbour so that the rescuees would be isolated. They did not allow communication with the rescuees. They did not consult with them about the arrangements being made for their physical relocation or future plans. After the arrangements were made the fact was announced to them, apparently not in their native language, but no effort was made to determine whether the rescuees desired to accept the arrangements. The respondents took to themselves the complete control over the bodies and destinies of the rescuees. [...JWhere complete control over people and their destiny is exercised by others it cannot be said that the opportunity offered by those others is a reasonable escape from the custody in which they were held. The custody simply continues in the form chosen by those detaining the people restrained.

Justice North then goes further than this factual finding, indicating doubts as to the validity of the three-wall-prison doctrine itself in refugee law contexts more generally: If I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window.

197 See e.g. G. Neuman, Strangers to the Constitution: Immigrants, Borders and Fundamental Law (New Jersey: Princeton U.P., 1996) [Neuman, Strangers] at 125 ("Immigration case law is rife with assertions that admission [...] is a privilege and never a right. That characterization would follow as a corollary from the assumption that the government possessed an absolute and unqualified power over immigration"). 19 See generally, Dow, American Gulag, supra note 68. 199 Ruddock I, supra note 169 at ^f 81 (Emphasis added) Ibid, at ^| 63, citing Burton v. Davies and General Accident Fire and Life Assurance Corporation Ltd, [1953] StRQd 26 at 30. This metaphor is deployed to suggest that refugees claimants, to the extent that they do, in fact, face a serious risk of persecution in their country of nationality, cannot be covered by at least the second argument noted above about the "self-imposed" nature detention 901 for the purposes of deportation, thereby posing a challenge to the three-walled-prison doctrine.20 It should be noted, though, that, in addition to drawing heavily on a problematic distinction between "forced" and "voluntary" migration,203 the metaphor does little to address Vattel's argument that non-citizens have no right to enter or remain in a country.

Irrespective of the validity of the general doctrine, because of North J's factual finding that there had been such a significant exercise of physical control over the rescuees' by the SAS troops as to constitute "detention" for the purposes of habeas corpus, he goes on to the second step in habeas corpus actions. That step is to inquire into whether there was any lawful authority for the detention.204

701 Justice North completes the analogy by noting the dangerous conditions that the rescuees would encounter should they return to Afghanistan. Ruddock I, supra note 169 at f 67. Many jurists working in the migration law context share North J's view. See e.g. Neuman, Strangers, supra note 197 at 125: If one concludes [...] that the arguments for government power over immigration support only a qualified power, then the question recurs whether admission may be a right - not necessarily an absolute right prevailing over all contrary considerations, but a prima facie right that cannot be infringed without adequate justification. •J AT The challenge, here, is not just the reality that many people who do not fit into the legal category of "refugee" are arguably "at risk life or limb" in their country of nationality due to considerations ranging from generalized high rates of criminal violence, to natural disasters, to insufficient publicly funded medical care, and to a lack of economic opportunities leading to devastating (and even fatal) levels of poverty. In addition, as anyone who has worked with refugee claimants in the developed world can attest, motivations for seeking asylum are invariably mixed, in that economic hardship, generalized risks and the sorts of persecution covered in the definition of refugees cannot be easily disentangled (at least not without doing violence to the narratives of asylum seekers). Finally, my most serious concern with the forced migration optic is that it treats migrants (and, worse, requires that migrants narrates themselves) as objects acted upon by social forces larger than themselves, rather than as highly industrious and active agents attempting to successfully navigate complex intersecting social and legal fields. 204 Ruddock I, supra note 169 at f 1 lOff. Engaging in this inquiry, North J notes, firstly, that that the Federal government did not point to any statute purporting to authorize the detention of persons in the rescuees' circumstances.205 Indeed, the government could not have done so because, while the then-existing immigration legislation authorized (and indeed required) detention within Australia for the purposes of eventual deportation in a number of circumstances, accompanying such detention were provisions allowing detained individuals to make claims for refugee protection. The legislation simply did not contemplate the possibility of detention aiming to prevent persons from gaining access to the Australian territory in order to prevent them from accessing the refugee determination * „, 208 system.

Absent statutory authorization for the detention, North J examines the issue of a potential prerogative power enjoyed by the state to detain and expel aliens, an argument raised by the government. Citing a long line of well-established cases, he flatly

205 Ibid, at T| 99. 206 Migration Act, 1958 at s. 189(1) (outlining the scenarios in which an officer must detain non-citizens who have entered an Australian "migration zone" illegally, but not detailing what powers officers have prior to such entry). 207 Ibid, at s. 256: Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention. 208 Ruddock I, supra note 169 at f 151-159. 209 Ibid, at 1111. 1 Chu Kheng Lim v. Minister for Immigration, Local Government and Ethnic Affairs (1992), 176 CLR 1 (HCA) at 19: Under the common law of Australia and subject to qualification in the case of an enemy alien in time of war, an alien who is within this country, whether lawfully or unlawfully, is not an outlaw. Neither public official nor private person can lawfully detain him or her or deal with his or her property except under and in accordance with some positive authority conferred by the law. Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without rejects this argument. In particular, he holds that even if such a prerogative existed historically (which he does not necessarily accept), it has long since been extinguished by the comprehensive statutory regime in Australia governing the removal of aliens, which the government conceded did not provide authorization for the actions of the SAS 211 troops.

On this basis, North J concludes that the MV Tampa rescuees had been "detained", and that the agents of their detention could not point to a lawful justification for that detention. He, therefore, grants the habeas corpus relief requested and orders that the rescuees be returned to Australia according to the terms of the undertakings. This order, however, is stayed pending appeal.

2.4.3. The MV Tampa Incident: Federal Court of Appeal

Not surprisingly the government appealed the decision. While the outcome of the case on appeal is clear - the appeal is granted and the habeas corpus relief is overturned - the reasoning behind the holding is anything but. Indeed, the three judges provide three distinct sets of reasons, including one strong dissent.

judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision Re Bolton & Another; Ex parte Beane (1987), 162 CLR 514 at 528-9: Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorise or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. [...] It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny. Mayer v. Minister for Immigration and Ethnic Affairs (1984), 4 FCR 312 at 316: But, whatever was, at one time, the common law prerogative power of the Crown in this matter, and that clearly was an arguable matter, at the present time the law with respect to the entry of persons to Australia and with respect to their expulsion is regulated by statute 211 Ibid, at 1] 122. 212 Ibid, at If 169-170. Ruddock II, supra note 169. 2.4.4. The MV Tampa Incident: Federal Court of Appeal (Beaumont J)

Beaumont J's judgment is perhaps the most straightforward, though also arguably the most troubling, in part because it relies heavily on the "three wall prison" doctrine, discussed above. In particular, Beaumont J suggests that North J moves too quickly into assessing the valid authority for the "detention" after establishing that the executive exercised physical control over the rescuees. Beaumont J maintains that the proper course of action would instead have been to first ask whether the measures taken by the executive interfered with any enforceable rights of the rescuees. Absent such a demonstrated interference, according to Beaumont J, inquiry into the authority for the measures is entirely unnecessary.

To this end, Beaumont J cites the jurisprudence noted above in support of the principle that aliens do not enjoy a general right to enter or remain in Australia. Extrapolating from this principle, he asserts that the actions taken by the Australian government to prevent the rescuees from entering Australia without permission did not infringe any of the rescuees' enforceable rights: [T]he occupants had no legal right at common law enforceable in a court to enter Australia. It must follow... that no foundation existed for the grant of a common law prerogative writ of habeas corpus compelling their entry into Australia. It is true that in other areas, some questions have not been finally settled. But in this regard, it is necessary to distinguish, for present purposes, between (a) the "right" of an alien outside Australia to enter and the source of the power to exclude and (b) excluding an alien and expelling an alien. That is to say, whatever questions may arise as to the power to deport without legislative backing [...] there is nothing in any of the authorities to contradict the principle that an alien has no common law right to enter Australia. This aspect is beyond argument. For this reason alone, I would allow the appeal. '

Given this finding regarding the lack of infringed rights, Beaumont J concludes that there is no need to examine the lawfulness of the actions of the executive. He thus, overturns the habeas corpus relief ordered by North J.

214 Ibid, at If 112-124. 215#>/

2.4.5. The MV Tampa Incident: Federal Court of Appeal (French J)

The next judgment, that of Justice French, agrees in the result with Beaumont J's disposition of the case, but offers a very different (not to mention novel) set of reasons for overturning the habeas corpus remedy ordered by Justice North. It is not entirely clear what French J holds regarding the factual existence of "detention" for the purposes of habeas corpus. This lack of clarity results from his conflation of "detention" with "unlawful detention." French J suggests that in determining whether there has been detention for the purposes of habeas corpus, it is not sufficient to assess whether the actions of the executive contributed to circumstance in which the movements of the rescuees were constrained. The reasoning here appears to be that the actions of public authorities cannot be assessed in a vacuum because the actual consequences of those actions are related to many external circumstantial factors. Where some combination of external circumstances and actions taken by public authorities combine to "constrain" individuals, French J suggests that one cannot attribute the "cause" of the constrain to the action of the public authorities: A public authority may do something in respect of a person which, in combination with other facts, results in that person's freedom of movement being curtailed. Whether the authority is thereby to be regarded

217 See e.g. Somerset v. Stewart, {Mil) 98 ER 499 (granting habeas relief under British law to a slave who while in England refused to return to the United States with the person purporting to be his "owner"). 218 RuddockII, supra note 169 at ]f 213. as imposing the resulting restraint on that person's freedom of movement for the purposes of the writ may involve a cause and effect analysis. If the authority's action contributes to the restraint there may then be a policy choice as to whether the outcome is attributable to the authority for the purposes of habeas corpus.2'9

In the particular context of the MV Tampa rescuees, French J suggests that the appropriate "public policy choice" is to attribute the alleged restraint on the rescuees to external factors. These external factors include the decision of the rescuees to attempt to come unlawfully to Australia, the initial sinking of the rescuees' vessel, and the refusal of the Captain to carry the rescuees across the high seas. These, then, are the legal "causes" of the constraint; not the actions of the SAS troops.

It must be said that French J's proposed "public policy choice" involves a troubling conflation between findings regarding lawful authority for detention and factual holdings regarding the existence of detention. This is confusion is particularly evident when we examine the way in which French J suggests making his public policy choice in these circumstances: [T]he actions of the Commonwealth were properly incidental to preventing the rescuees from landing in Australian territory where they had no right to go. Their inability to go elsewhere derived from circumstances which did not come from any action on the part of the Commonwealth. The presence of SAS troops on board the MV Tampa did not itself or in combination with other factors constitute a detention. It was incidental to the objective of preventing a landing [... ] In my opinion, taken as a whole, there was no restraint on their liberty which could be 77 1 attributed to the Commonwealth.

In this passage French J collapses the two-step analysis at the heart of the ancient writ of habeas corpus. Moreover, he disturbs North J's finding of fact with regard to the existence of detention (without specifying the standard of review applicable to factual findings on appeal) on the grounds of an ambiguous and previously unknown public policy choice (for which he offers no authority) built into what I called the three-wall

Ibid, at ^f 211 (emphasis added). 220 Ibid, at 1213. Ibid. 222 See above, note 191 (and accompanying text). prison doctrine above. If such reasoning is surprising, however, his next argument is downright startling.

French J contends that the executive of Australia enjoys an implicit but hitherto unspecified constitutional executive prerogative over the exclusion or expulsion of foreigners. What is novel about his view is that this purported prerogative is conceptually distinct from and "cannot be treated as a species of the royal prerogative."224 He locates this conceptual distinction in the notion that the executive prerogative flows not from the British Crown. Instead, it came into being "as part of a negotiated federal compact expressed in a written Constitution distributing powers between the three arms of government." The particular constitutional provision from which he asserts that this prerogative springs into being is s. 61 of the Australian Constitution, which reads: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution and of the 99f\ laws of the Commonwealth.

The rationale here appears to be that, as per Vattel, the ability of the state to exclude unwanted aliens is a fundamental feature of state sovereignty, and, thus, power over the expulsion of aliens necessarily falls within the "execution and maintenance" of the Constitution set out in s. 61. Irrespective of whether the British Crown enjoyed a royal prerogative with respect to the exclusion of aliens, an executive prerogative sprung into being with the coming into effect of the Constitution. This last move is essential for French J's argument. It allows him to circumvent the substantial line of cases, cited by Justice North and referred to above, establishing that any purported British royal prerogative authorizing the exclusion of aliens had long since been extinguished by comprehensive statutory regulation.227

Justice French maintains, furthermore, that one feature of his newly discovered constitutional executive prerogatives is that they are more difficult to displace or

99^ Ruddock II, supra note 169 at ^f 176-198. 224 Ibid. If 183. Ibid. Commonwealth of Australia Constitution Act 1901, (Cth.), c. 1, s.61. 997 See above, notes 209-211 (and accompanying text). extinguish through comprehensive statutory regimes than are traditional crown prerogatives. According to French J, this is particularly true when the prerogative in question confers powers that are "intimately connected to Australia's status as an independent, sovereign nation State."228 Because powers over the exclusion and expulsion of aliens are, French J suggests, fundamentally connected to state sovereignty, the mere existence of a statutory regime governing migration is not - absent express statutory provisions to the contrary - sufficient to displace the constitutional executive prerogative over these matters. As French J puts it: In considering what is the implied intention of the [Migration] Act and in particular the provisions referred to earlier, it is necessary to have regard [... to] the importance to national sovereignty of the particular power in question. In my opinion the Act, by its creation of facultative provisions, which may yield a like result to the exercise of executive power, in this particular application of it cannot be taken as intending to deprive the Executive of the power necessary to do what it has done in this case. The Act confers power. It does not in the specific area evidence an intention to take it away.230

It is on the basis of this novel and difficult to displace constitutional executive prerogative that French J concludes that "there was no detention, what was done was within power, the appeals should be allowed, the orders made by his Honour set aside and the applications before him, dismissed." Notice once again the confusion between the existence of detention and the lawful authority for detention. A more accurate way of putting this passage would have been: "What was done was within power, therefore, there was no detention, thus the appeals should be allowed.

2.4.6. The MV Tampa Incident: Federal Court of Appeal (Black CJ, Dissenting)

To further confuse matters, in addition to these two very distinct concurring judgments, the third judge, Black CJ, offers a particularly strong dissent. The substance of his judgment largely replicates North J's reasoning. Essentially, he concurs with North J that the effective control exercised by the SAS troops over the rescuees constituted "detention" for which the government could point to no lawful authority. As I have

Ruddock II, supra note 169 at ][ 185. 229 Ibid, at If 199-205. 230 Ibid, at j[ 202. 231 Ibid, at 1215. reviewed North J's decision above, I will not go over all the particulars of Black CJ's decision here. Three features of Black, CJ's judgment are, however, worth noting.

The first is that he offers a persuasive critique of French J's novel constitutional executive prerogative. Black CJ canvasses British case law and constitutional theory to establish that any purported royal prerogative over the exclusion of aliens, if it ever existed, had long since been extinguished due to comprehensive statutory regulation of migration. He notes, moreover, that even if such a royal prerogative existed historically, it had not been used since at least the mid 18th century.233 This established, he gives short shrift to French J's constitutional executive prerogative: If it be accepted that the asserted executive power to exclude aliens in time of peace is at best doubtful at common law, the question arises whether s 61 of the Constitution provides some larger source of such a power. It would be a very strange circumstance if the at best doubtful and historically long-unused power to exclude or expel should emerge in a strong modern form from s 61 of the Constitution by virtue of general conceptions of 'the national interest'. This is all the more so when according to English constitutional theory new prerogative powers cannot be created.234

The second feature of Black CJ's decision that I would like us to notice is his quick rejection of Beaumont J's argument that where aliens have no right to enter Australia they cannot be said to be "detained" when they are prevented from entering Australia, so long as they are left free to go anywhere else of their choosing. As Black CJ puts it: Habeas corpus is a remedy directed to the relief of a person's detention without lawful authority, at a particular place and time. [...]The question should not be, "Would the person be free if they went somewhere else?" but rather "Is the person detained here and now?". If so, prima facie, the detention is unlawful unless legally justified: [...] It is, therefore, important to focus not on the lack of any right of the rescued people to

232 Ibid, at U 30-64. 233 Ibid, at % 23 ("the last occasion on which it appears that a prerogative power to expel or exclude non-citizens was in 1771, when the Crown directed that Jews "unable to pay the usual freight", should, unless they had a passport from an ambassador, be excluded from British territory"). 234 Ibid, at t 30. enter Australia, but on whether the rescued people were, in a real and practical sense, detained by the Commonwealth.235

Thirdly, Black CJ expressly takes into consideration that findings of fact at first instance - especially with regard to the finding of "detention" - are not to be lightly overturned on appeal. As such, Black CJ's judgment appropriately uses the language of "it was open to the trial judge to find"236 and "I would not disturb the trial judge's finding".237 In contrast, it is troubling that neither Beaumont J nor French J address what standard of review they employ in overturning Justice North's factual findings or why it is that they feel that these factual findings were not available to him.

Unfortunately, in spite of the persuasiveness of Black CJ's judgment, it remained a dissent. Thus, the result in the Federal Court of Appeal was to overturn North J's decision, and to deny the rescuees the requested habeas corpus remedy.

2.4.7. The MV Tampa Incident: The Pacific Solution & the High Court of Australia

The rescuees sought special leave to appeal the Federal Court of Appeal decision to the High Court of Australia. However, leave was denied on the grounds that the issue was moot. Remember that during the initial Federal Court proceedings, the executive entered into a series of agreements with foreign states enabling Australia to transport the rescues to Nauru and to New Zealand. The undertakings between the parties in Federal Court allowed the executive to act upon these agreements immediately. As a result, by the time the High Court of Australia decided whether to grant leave to appeal, the rescuees were no longer physically detained by SAS troops, but instead by authorities in New Zealand and Nauru. As Gaudron J, speaking for herself, Gummow and Hayne JJ in denying leave to appeal said:

235 Ibid, at Tj 71 &77. 236 Ibid, atf 83. 237 Ibid, at f 90. TIC High Court of Australia Transcript, Vadarlis v. Minister for Immigration and Multicultural Affairs, M93/2001 (27 November 2001) ["Vadarlis "], cited in Ruddock v. Vadarlis, [2001] FCA 1865 (granting an order for costs sought by the government against Vadarlis and the Victoria Council for Civil liberties). Tin See above, notes 188-190 (and accompanying text). In so far as the applicant now seeks to pursue a claim to or in the nature of habeas corpus, it is common ground that the essential claim made at trial and in the Full Court of the Federal Court, namely, the detention of the persons concerned aboard the MV Tampa can no longer be made. None of the persons concerned is now aboard either the MV Tampa or the HMAS Manoora, the vessel to which they had been transferred by the time the trial judge made his orders; all have now gone either to Nauru or to New Zealand pursuant to arrangements made with the governments of those countries. If the persons concerned are now detained (a question about which there has been no trial) each would be detained in a foreign country subject to whatever is the law of that country touching that question. That detention, if any, was not the subject of the proceedings in the Federal Court [...] Habeas corpus issues to require justification for the continued detention of a person who is in detention at the time the writ issues; it does not issue to inquire into the lawfulness of detention that is at an end.240

At this point, then, that the gambit by the executive of Australia appeared to be successful: by forcibly relocating the rescuees to Nauru and New Zealand, the executive curtailed the ability of Australian courts to inquire into lawfulness of the ongoing detention of the rescuees, and effectively prevented the rescuees from launching refugee claims in Australia. In the end, however, the issue did eventually find its way back to the High Court of Australia, though only several years later. The circuitous route through which the case had to travel is a story in and of itself.

The "Agreement of Principle" between Australia and Nauru through which the Australian executive ultimately resolved the MV Tampa Incident was an unusual one to say the least. Nauru, the world's smallest independent republic,241 is a tiny island in the South Pacific with a serious economic problem. The island, with a population of

947 approximately 13,000 is effectively a large phosphate deposit surrounded by a narrow ring of habitable land along its coast.243 Nauru's only industry throughout its recent

240 High Court of Australia Transcript, Vadarlis v. Minister for Immigration and Multicultural Affairs, M93/2001 (27 November 2001) ["Vadarlis "], cited in Ruddock v. Vadarlis, [2001] FCA 1865 (granting an order for costs sought by the government against Vadarlis and the Victoria Council for Civil liberties). 241 CIA, World Factbook (online: http://www.cia.gov/cia/publications/factbook/geos/nr.html) (accessed: September 25, 2005). 242 Ibid. The actual population is: 13,048 (as of July 2005). Ibid. 131 history has been its phosphate mine. By the late 1990s the mine was depleted, leaving behind a largely uninhabitable wasteland covering the vast majority of the island,244 as well as a mind-boggling 90% unemployment rate.245 At the time of the MV Tampa Incident, the future of Nauru's population appeared to be entirely dependent on international aid, particularly Australian aid.246

In this dire context, it is perhaps not surprising that Nauru was quick to take up Australia's offer of aid and debt write-offs 47 in exchange for "temporarily" housing the MV Tampa rescuees until their refugee claims could be processed. The processing was to be conducted with the assistance of the International Organization for Migration (IOM) and the United Nations High Commission for Refugees (UNHCR). These organizations were responsible for facilitating the resettlement of successful claimants in states willing to take them. Australia further agreed to ensure that unsuccessful claimants would be expediently returned home.248

It would seem, then, that in Nauru - which is not, it is worth noting, a signatory to the 1951 Convention - Australia had found a solution to its perceived refugee problem.

4 Ibid, ("intensive phosphate mining during the past 90 years - mainly by a UK, Australia, and NZ consortium - has left the central 90% of Nauru a wasteland and threatens limited remaining land resources"). Ibid. 24 Ibid. ("Economic aid - recipient: $2.25 million from Australia (1996-7)"). Though Nauru had made some attempts during this period to set itself up as a tax haven, by the time of the MV Tampa Incident, these attempts appeared to be faltering. Ibid. : In recent years Nauru has encouraged the registration of offshore banks and corporations. [...] [Ojffshore banking [has] recently stopped, [and Nauru] remains on Financial Action Task Force Non-Cooperative Countries and Territories List for continued failure to address deficiencies in money- laundering control regime. 247 See Howard, "Deter and Deny", supra note 83 at n24: Australia would fully finance the costs of Nauru in hosting the asylum seekers. Australia further agreed to an assistance package for Nauru totaling over A$ 18 million, including A$4.5 million for health related items, A$3.45 million in education assistance, A$3.8 million in fuel, A$4.2 million in power generation, A$ 1 million in rehabilitation support and A$ 1.2 million in miscellaneous items. 248 Ibid. Indeed, through a series of similar bilateral agreements, this tiny island republic was destined to become a permanent off-shore camp for processing and housing asylum seekers interdicted prior to their arrival in Australia.250

Needless to say, those who found themselves detained in Nauru were unhappy with this arrangement. Juma Khan Nazari, one of the MV Tampa rescuees "processed" in one of the detention centres on Nauru drew the following very apt parallel in response to Australia's resolution of the MV Tampa Incident: The way we have been treated is entirely inhuman. We have been treated as criminal and terrorists. Nauru detention centers are not different from the Cuban Island where Al Qaeda criminals are being locked up. Nauru is being proved a dumping ground for refugees by Australian government providing millions of dollars for feeding its poor and jobless people in return to maintain detention centers. Nauru detention centers are prisons 252 in prison.

In spite of the reaction of those detained in Nauru, the government's policies were wildly popular among the Australian electorate. In fact, it is generally agreed by political

Similar agreements established foreign processing centres in other impoverished pacific island states, including the Manu Province of Papua New Guinea. See generally OXFAM, "Inquiry into Australia's Relationship with Papua New Guinea and Other Pacific Island countries", Submission to the Senate Foreign Affairs, Defence and Trade References Committee (8 July 2002) (online: http://www.oxfam.org.au/campaigns/submissions/auspngpacificrealtions-sub.pdf) (accessed: 15 October 2005). 250 See generally S. Taylor, "The Pacific Solution or a Pacific Nightmare?" (2005) 6 Asian-Pacific L. & Pol'y J. 1 [Taylor, "Nightmare"]; Howard, "Deter and Deny", supra note 83. Obviously, much more can profitably be said about the Nauru arrangement in particular — not the least of which is the troubling participation of both the UNHCR (at the early stages) and the IOM (which continues today) in this scheme - and about offshore processing centres in general. For an excellent review of the more general issue see G. Noll, "Visions of the Exceptional: legal and theoretical issues raised by transit processing centres and protection zones" (2003) 5 European Journal of Migration and Law 303. 251 The Nauru detainees complained repeatedly of maltreatment, and staged hunger strikes involving sewing up their lips. The Australian government denied any responsibility for the detainees, saying that the rescuees were subject to Nauruan - not Australian - sovereignty. See e.g. "Ruddock Enters Nauru Spat", ABC News (Online) (7 January 2004) (online: http://www.abc.net.au/news/newsitems/sl021750.htm) (accessed: 2 November 2005). 252 J. Nazari, "Remembering my Tampa day", Press Release (11 August 2003) (online: www.safecom.org.au/tampa.htm) (accessed: 22 September 2005) [Emphasis added]. observers that Prime Minister John Howard won the subsequent federal election largely on on the strength of his hard-line handling of the MV Tampa crisis. During the campaign for this election, Mr. Howard endlessly repeated a mantra that Vattel would have viewed with approval: "We will decide who comes to this country and the circumstances in which they come."254 Of course, this "we" in Howard's oft-repeated phrase most assuredly was not meant to include Australian courts, as was made crystal clear in October of 2001 with the Migration Legislation Amendment (Judicial Review) Act, 2001. This legislation included a privative clause that purported to preclude any form whatsoever of judicial review of the large majority of administrative decisions taken in the migration context.255

What I want us to notice here is how the government's response to the MV Tampa scenario extended far beyond the cases of the particular MV Tampa rescuees. In fact, this arrangement, along with a number of subsequent modifications to Australian migration law, eventually became Australia's Pacific Solution (though the Australian government prefers less dramatic term Pacific Strategy). 56 The cornerstone of the Pacific Solution are agreements with various pacific island countries, similar in principle to the Memorandum of Understanding with Nauru. At the height of the Pacific Solution, Australia secured sufficient space in foreign processing centres (purportedly shielded

' See e.g. L. Dodson & S. Douez, "Pacific solution a nightmare: Nauru" in The Age (10 June 2002) ("Tampa won [...] the last election"). Barkham, "The Other Howard", supra note 64 ("the immigration pill [was] the magic ingredient that won John [Howard] the election in 2001"). 254 M. Day, "Victory comes at a high price" in The [Sydney] Daily Telegraph (14 November 2001) 24 (noting that this phrase repeatedly deployed by the Prime Minister tracked well onto the language used by supporters of the infamous 'White Australia' policy) (emphasis added). 255 This provision was subsequently given a highly restrictive reading by the High Court of Australia in Plaintiff SI 57/2002 v. Commonwealth, (2003) 211 CLR 476 (holding that the private clause could not prevent judicial review for jurisdictional competence, which the court interpreted as including a number of procedural due process components). 256 For a particularly comprehensive outline and compelling critique of the Pacific Solution see OXFAM, Still Drifting: Australia's Pacific Solution becomes a Pacific Nightmare (2002) (online: http://www.oxfam.org.au/campaigns/refugees/still drifting/stilldri fting.pdf) (accessed 12 September 2005). from Australian law) for well over 2,000 interdicted asylum seekers.257 What's more, the indication offered by Australian courts that they would not interfere with executive resort to foreign processing centres for asylum seekers presented the Australian executive with an irresistible temptation: if this practice could be employed for asylum seekers interdicted within Australian territorial seas, why not extend the practice to asylum seekers on the Australian landmass?

After all the examples of state manipulations of their borders we have encountered thus far in this Chapter, what came next will not be much of a surprise. To increase the number of asylum seekers who could find themselves in foreign processing centres shielded from Australian law, the Australian government deployed a spectacular legal fiction: they excised large parts of outlying regions of Australian territory for the limited purposes of migration law. The major aim of this partial excision of Australian territory was to allow for the transfer to foreign processing centres of unauthorized migrants who enter Australia through excised zones on the same terms as if they had been interdicted prior to their arrival in Australia.25

Notice that this legislation does not merely carve out exceptional legal spaces (i.e. a space "outside" Australia for the purposes of border control).260 It also creates an exceptional status. The legal fiction applies not simply to migrants apprehended by the authorities while they are physically (if no longer legally) located in the excised zones. It

" Taylor, "Nightmare", supra note 250 at 7-8. Migration Act, 1958, s.5(l) (see especially the definition of "excised offshore place"). The note accompanying this section reads: The effect of this definition is to excise the listed places and installations from the migration zone for the purposes of limiting the ability of offshore entry persons to make valid visa applications. 259 Ibid. s. 198A (authorizing an officer to "take" a person who has entered Australia through an excised offshore place to a third country declared by the Minister to meet certain conditions). 6 There has been an explosion of academic interest in "exceptional" legal spaces, largely in reaction to the American war on terrorism. For a recent - and persuasive - critiques of the creation of such spaces, see J. Butler, Precarious Life: The powers of mourning and violence (London: Verso, 2004) & G. Agamben, State of Exception (K. Attel, Trans.) (Chicago: U. Chicago P., 2005). also applies all migrants who enter Australia through the excised zones, no matter where they find themselves in Australia, and no matter how long they have been there.

This exceptional status at the heart of the Pacific Solution, a status that has analogues in many destination states,262 has a number of important implications for the understanding of borders we have been working with throughout this Chapter. We will return to these implications shortly. Before we do so, however, let us finish up with the story of the MV Tampa rescuees.

Given the totality of the erasure of their presence through executive manipulations of the territorial limitations of the Australian legal order, how did the MV Tampa rescuees end up in the High Court of Australia? After all, they were physically located in detention centres on the "sovereign" island republic of Nauru, where the High Court of Australia had already asserted the law of Nauru applied, not the law of Australia.

The answer is a curious feature of Australia's colonial history. Nauru, populated by a number of indigenous communities, was periodically controlled by Australian, British and German colonial powers over the course of the 19l1 and 20M centuries.264 Germany gained the upper hand in this struggle from 1888 until the First World War.265 At that point, Nauru became a League of Nations Mandate Territory administered by the British Empire. In practice, this mandate arrangement led to the commencement of

' Migration Act, 1958, s. s. 5(1) (see especially the definition of "offshore entry person"). See below, Subsection 2.4.8. While this community has developed its own language, apparently it is historically a mix of various pacific island peoples. See generally, C. McDaniel & J. Gowdy, Paradise for Sale (Los Angeles: U. California P., 2000) [McDaniel & Gowdy, Paradise] at 19-22. "6 According to some estimates by the time Australian forces recaptured the island in 1945, nearly a third of the population had been killed or removed. See generally A. Anghie, '"The heart of my home': Colonialism, Environmental Damage, and the Nauru Case" (1993) 34 Harv. Int'l L.J. 445 [Anghie, "Nauru"], see especially at 449-451. "6~ Nauru became a German Protectorate in 1888. McDaniel & Gowdy, Paradise, supra note 263 at 35. 266 Ibid, at 43-44. lucrative phosphate mining on the island, with the profits being shared between New Zealand, Australia and Britain.267

During the Second World War, the Japanese army occupied Nauru, forcibly deporting a substantial proportion of the local population. At the conclusion of the war, Nauru was administered through a shared arrangement between New Zealand, Australia and the United Kingdom under the United Nations Trusteeship system, which replaced the old Mandate system.269 The result, for Nauru, was renewed exploitation of the phosphate mine, once again largely to the advantage of their old colonial masters. Eventually, however, this exploitation provoked an independence movement. As McDaniel & Gowdy describes, Neither the League of Nations nor the United Nations ever intended the trusteeships to be permanent. They were temporary arrangements intended to give the territories under trusteeship time to prepare for independence. The tremendous wealth buried [on Nauru], coupled with the Australian need for phosphate in the context of an imperialistic mentality, did not encourage the trustees to prepare the Nauruans for independence. [... By 1968, however, t]he Nauruan desire for independence and control over their land could no longer be denied. The sixty years of mining under occupation and then trusteeship had left more than a third of the island in a state of complete destruction. Who was to restore this hollowed-out wasteland on their island?

Ultimately, the Naruans sought to take charge of restoring their "hollowed-out wasteland", and on January 31, 1968, Nauru achieved independence.

Upon achieving independence, the Constitutional Convention of Nauru11 [ [the Constitution of Nauru] established the new structures of government, including the

267 Ibid, at 44; Anghie, "Nauru", supra note 264 at 451-452. 268 Anghie, "Nauru", supra note 264 at 452. 6 Ibid, at 45. See also Trusteeship Agreement for the Territory of Nauru, Nov. 1, 1947, 10U.N.T.S. 3. 270 Anghie, "Nauru", supra note 264 at 452. OnOnlinel : http://www.paclii.Org/nr/legis/num_act/con256/#fnl (accessed: 25 September 2005). Supreme Court of Nauru. In setting out the jurisdiction of the Supreme Court of Nauru, s.54 of the Constitution of Nauru states: (1.) The Supreme Court shall, to the exclusion of any other court, have original jurisdiction to determine any question arising under or involving the interpretation or effect of any provision of this Constitution.

Similarly, on the subject of further appeals, s. 57 of the Constitution of Nauru provides: (2.) Parliament may provide that an appeal lies as prescribed by law from a judgment, decree, order or sentence of the Supreme Court to a court of another country.

The result of these two provisions in the Constitution is that Nauru's Parliament may legislate an appeal, on matters other than constitutional interpretation, to the Courts of another country. Parliament subsequently did so, establishing an appeal to the High Court of Australia in the Appeals (Amendment) Act 1974 [the Appeals Act].273 In keeping with the limitation in s.54(l) of the Constitution, however, s. 45 of the Appeals Act, limits the right of appeal in a number of circumstances, including: "(a) where the appeal involves the interpretation or effect of the Constitution."

This then is the long route through which the MV Tampa rescuees ended up finding themselves in the High Court of Australia, notwithstanding the manoeuvring of the Australian executive. A number of MV Tampa rescuees held for several years in detention centres in Nam built and administered by Australia appealed to the High Court of Australia a decision issued by the Supreme Court of Nauru. This decision denied them a writ of habeas corpus against the Director of Police of Nauru, a remedy that was constitutionally entrenched under provisions prohibiting deprivations of liberty without legal authority under s. 5(1) of the Constitution215

Constitution of Nauru, at s. 48(1.): "There shall be a Supreme Court of Nauru, which shall be a superior court of record." ~73 Australian legislation was also passed purporting to authorize the High Court of Australia's jurisdiction over such appeals. Nauru (High Court Appeals) Act 1976 (Cth) (see especially s. 5). 274 Amiri v. Director of Police [2004] NRSC 1 (online at: http://www.paclii.Org/nr/cases/NRSC/2004/l.html) (accessed November 8, 2005) [Amiri]. Section 5(1) (with emphasis added) reads: The appeal from this decision to the High Court of Australia produced two separate judgments. The High Court judgment overruled an objection to the asserted jurisdiction of the Court, holding that the High Court of Australia does indeed have jurisdiction over the non-constitutional aspects of the appeal.276 The second High Court judgment denied the appeal on substantive grounds.277

There are a number of fascinating aspects to both decisions, not the least of which is that during the proceedings, the Australian government once again attempted to manipulate physical presence on territory in order to remove jurisdiction from Australian courts! This time, the appellant before the High Court of Australia (who had been chosen as a test case) was issued a visa by to enter Australia. He was transported to Australia two months prior to the publication of the decision by the High Court of Australia. As a result, lawyers for the government submitted that the High Court should refuse to issue a judgment on the substance of the appeal, on the grounds that the issue had become moot.278

No person shall be deprived of his personal liberty, except as authorised by law in any of the following cases:- (a) in execution of the sentence or order of a court in respect of an offence of which he has been convicted; (b) for the purpose of bringing him before a court in execution of the order of a court; (c) upon reasonable suspicion of his having committed, or being about to commit, an offence; (d) under the order of a court, for his education during any period ending not later than the thirty-first day of December after he attains the age of eighteen years; (e) under the order of a court, for his welfare during any period ending not later than the date on which he attains the age of twenty years; (f) for the purpose of preventing the spread of disease; (g) in the case of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol, for the purpose of his care or treatment or the protection of the community; and (h) for the purpose of preventing his unlawful entry into Nauru, or for the purpose of effecting his expulsion, extradition or other lawful removal from Nauru. 276 Ruhani I, supra note 169. 977 Ruhani II, supra note 169, Kirby J dissenting. 278 Ibid, at f 42. Although this argument seemed to be perfectly compatible with the reasoning offered by the High Court in its denial of leave to appeal the original habeas corpus action in 2001, curiously, the majority does not address the issue in new appeal.280 Justice Kirby, in dissent, however, deals with it as follows: It now appears that the present position of the appellant is that he is no longer in detention in Nauru. No order of habeas corpus could therefore be made in his favour by the Supreme Court of Nauru. Exercising its powers on appeal from that Court, this Court should not make orders of habeas corpus which would be ineffective.

Nevertheless, other legal consequences flow from the determination of this appeal. There remain many other detainees in Nauru who are affected by the principles fully argued in what was effectively a test case. Not without some hesitation, therefore, I will treat the proceedings as continuing to present a viable in the issue for the decision of this Court. This justifies its determination according to the legal merits.

The Australian executive need not have bothered, however, with their underhanded attempt to prevent the High Court from issuing its decision in this case. Indeed, the decision provided them a decisive victory. It upheld the denial of habeas corpus relief by the Supreme Court of Nauru on the grounds that the alleged detention was authorized by law.282

Unlike in the Federal Court MV Tampa cases, the majority in the High Court of Australia does not enter into a discussion as to whether the authorities in Nauru were "detaining" the MV Tampa rescuees for the purposes of habeas corpus. Though the respondents did raise the argument that the rescuees were not "detained", the majority

Vadarlis, supra note 238. Although, perhaps that is not surprising given that the majority does not even bother detailing how it is that the appellants ended up on Nauru to begin with. Ruhani II, supra note 169, at ^ 82-83. 282 Ibid, at f38. Supreme Court of Nauru Chief Justice Connell offered a refreshingly succinct analysis of the detention issue, Amiri, supra note 274 at 1(25-27. The Respondent was at pains to submit that there was no deprivation of liberty. The argument ran along the lines that as the asylum seekers arrived within the boundaries of Nauru without passports or entry permits, the PIO, in permitting the asylum seekers to enter and stay within a specified location of in the Australian High Court suggests that it is not necessary to consider the argument. The majority came to this conclusion on the ground that it concurs with Supreme Court of Nauru's finding that any alleged detention was authorized by law. The majority thus holds that its finding in favour of the existence of lawful authority for the alleged detention is sufficient to dispose of the case.284

In upholding the finding regarding lawful authority, the majority in the High Court relies heavily on what they call a "conundrum" in the rescuees' argument. To appreciate the nature of this conundrum, it is important to note that Nam's purported authority to hold the rescuees in the Australian-built detention centres flowed from a limitation in the "Special Purpose Visas" granted to rescuees when they entered Nauru. These Special Purpose Visas, granted pursuant to Naruran immigration regulations,2 5 stated that the movement within Nauru [of the rescuees] shall be restricted to within [sites designated by the Government of Nauru] except with consent of the Office of the President.286

The rescuees, however, argued that they had never applied for the visas they had been "granted" (nor for subsequent renewals of those visas). They thus contended that the visas were not issued in compliance with Nauru's Immigration Regulations, 2000, R13(l)

Nauru, did not deprive the Applicants of any liberty that they otherwise had - an anything is better than nothing rule! However, once the non-citizens have been admitted to Nauru, they each become subject to Nauruan law and part of that law is the prevailing common law with respect to habeas corpus and the rights provisions of the Constitution both of which apply to citizens and non- citizens alike.[...] I have no difficulty in finding that, for the purposes of habeas corpus, the Applicants were in a custodial situation. They were confined to a particular location [...] and that location had certain restraints such as perimeter fencing, controlled entrance and exit, and an overall police control. [...] [Gliven the detention, the issue at stake was whether it was legal or not. Ruhani II, supra note 169 at T]38. 285 Immigrations Regulations, 2000. R12(4), pursuant to Immigration Act 1999, s. 9. Regulation 12(4) Authorizes the Principle Immigration Officer [PIO] to: on humanitarian or other grounds, permit a person who arrives in Nauru without a passport to enter and remain in Nauru, or where the person has already entered Nauru, to remain in Nauru, and for the purpose may grant to the person a special purpose visa, on such conditions as the [PIO] thinks fit. Ruhani II, supra note 169 at ^8. which reads: "An application for a visa shall be made in writing, by the applicant for the visa or by another person acting on behalf of the applicant."

Herein lays the "conundrum". Suppose that the rescuees are correct in their argument that the visas were void and of no effect, on the grounds that there had never been an application in writing by the applicant or by a person who could be said to be acting on behalf of the applicant. If the visas are void then the rescuees were present in Nauru in violation of the Immigration Act 1999, which makes it an offence for non- citizens to enter and remain in Nauru without a visa. The penalty for such unlawful entry includes imprisonment.288 As a result, either the visa is valid, in which case the lawful authority for the alleged "detention" of the rescuees is the express limitation in the visa, or the visa is invalid, in which case the lawful authority for the detention is the rescuees' entry onto Nauru without a valid permit in contravention of the Immigration Act 1999.289 The majority in the High Court of Australia chooses to resolve this "conundrum" by asserting that R13(l) was permissive only: it provided for one way in which an applicant could seek to acquire a visa (i.e. by making an application in writing) but it did not limit the granting of visas only to those who had made applications.

The majority also rejects a second argument made by the rescuees. This second argument is that the restrictions on mobility imposed in the Special Purpose Visas were beyond the power conferred by the regulations, in that they amounted to a form of extra- curial punishment. The majority rejects this argument on Vattelian grounds, stating that it is a well-recognized principle that, as a sovereign state, it is for the Republic of Nauru to annex what conditions it pleases to permission given to an alien to enter it. This is so whether the entry be voluntary, or, as the appellant says was the case here, it be involuntary.

It is worth noting here, that the above emphasized passage is the only reference (and it is an oblique one at that) by the majority to the MV Tampa incident, though which

287 Immigration Act 1999, s. 5(2) 2nIbid,s. 13. Ruhani II, supra note 169 at ^21. 290 Ibid, at 133-35. 291 Ibid, at 126. the rescuees found themselves on Nauru, a point commented upon by Justice Kirby in 999 dissent. Indeed, Kirby J. repeatedly insists that the majority's "conundrum" is only apparent in abstraction from the history of the MV Tampa rescuees. He suggests that it is deeply problematic to assert that the rescuees fit in any way within the frame of the Immigration Act, 1999: it is clear that the Act, with its general provisions on immigration, was not attracted, nor did it apply, to the case of the appellant in Nauru. It was an Act designed to apply, as its terms indicate, to the ordinary case of a person entering and being in Nauru, deliberately, accidentally or by force of nature or chance. It had no application to a case of a person, like the appellant and the other "rescuees", who were deliberately brought to Nauru by the decision of the Government of Nauru, pursuant to an understanding that Nauru had with another government seemingly for reasons of international relations and financial gain.294

Or, again: In short, because the appellant and those with him were brought to Nauru under physical constraint and thereupon detained and subjected, at the request of a foreign nation, to visas they had not sought, it cannot be said, within the Act, that they have unlawfully entered Nauru or are unlawfully in Nauru. It does not lie in the mouth of the Executive Government of Nauru and its officials, who condoned, facilitated and participated in the arrival, entry and presence of the appellant and other detainees in Nauru to contend, in the language of the Act, that they are immigrants, subject in the ordinary way to regular visas envisaged by the Act for the ordinary case. This was no ordinary case.

Kirby J, then, holds that based on the inapplicability of the Immigration Act, 1999 to the circumstances of the rescuees, the Special Purpose Visas offer no lawful authority for the continued detention of the rescuees. Kirby then notes what he calls a common law "presumption in favour of liberty and against indefinite detention" and the "the principle of legality protective of human rights 'of which personal liberty is the most basic.'" Combining these principles with his holding that there was no lawful authority

292 Ibid, at f45. 293 He points out that the language of permission to enter Nauru, traveling to Nauru, and granting an application for a visa seem inapplicable to the rescuees' case. Ibid, at ^[90. 294 Ibid, at f89. 295 Ibid, at Tf96. 296 Ibid. atf53. 291 Ibid, at Tf95. for the continued detention of the rescuees, Kirby J would overturn the decision of the Supreme Court of Nauru: The Government of Nauru is simply faced with the awkward, and urgent, obligation to set those persons at liberty; to arrange with Australia for their removal; or to secure the passage of legislation, if compatible with the Nauruan Constitution, apt to their detention and special circumstances which effectively turned Nauru into a place of prolonged detention of many [from] another country.

The MV Tampa rescuees' stories, of course, continue after the High Court decision. As I write, the vast majority of those who spent several years detained on Nauru have been transferred to Australia and other countries of asylum, or have taken up substantial "voluntary" return packages offered by the Australian government.299

As a more general matter, persistent critiques have been directed towards the so- called Pacific Solution. Many note, for example, that the Pacific Solution failed, in that it was significantly more expensive than other options for deterring unwanted self-selected asylum seekers from coming to Australian shores.300 However, the Australian government continues to the time of writing to negotiate with Nauru the terms of a more permanent agreement allowing for the possibility of future detention should the need arise.301

298 Ibid, at If HO. 299 F. Hamilton, "Afghans Cash Up and Fly Out" in The [Sydney] Daily Telegraph (July 23, 2003) (noting that the government made several dozen offers of A$2,000 per person up to A$ 10,000 per family to a number of Afghanis detained in Nauru. According to the government 2/3 of those to whom offers were made accepted them). The operating costs for the offshore processing centres, which have housed a total of approximately 1500 detainees, are estimated to be in excess of A$200 million (more than A$ 125,000 per person). See e.g. N. Burke, "Pacific Solution is Finally Shelved" in The Queensland Courier Mail (15 October 2005) 6. See also M. Crock, "In the Wake of Tampa" (2003) 12 Pac. Rim L. & Pol'y 49 at 87. 3 ' P. Mercer, "Australia winds down Nauru camp" in BBC News, online ed (14 October 2005): Australia is to remove almost all of the asylum seekers it is holding in its off-shore processing centre on Nauru. [... However, t]he Prime Minister, John Howard, has insisted this is not the end of the road for the detention centre on Nauru. He said it was still an important part of his government's immigration policy and would stay open. 2.4.8. Other Legal Fictions

Australia's Pacific Solution is only the most visible and dramatic example of resorting to a legal fiction to erase the presence of unwanted migrants from the territory of states. The most obvious analogous practices in other states are smaller scale excisions of key zones of transit - in particular international airports - that are declared not to be part of the territory of the state for the purposes of migration law. One well known example is French legislation purporting to remove the "International Transit Zone" of the Orly Airport in Paris from the territory of France for certain limited purposes. The original Ordinance, to this effect - which was subsequently restricted by French and European courts303 - described this "excision" as follows: An alien who has been refused leave to enter French territory at an airport or port, or who has sought asylum there, may be held in the transit zone of that airport or port for the time strictly necessary to arrange his departure or to consider his application for leave to enter the territory, and for not more than twenty days. This zone, whose limits shall be laid down in a decision of the Prefect, shall extend from the points of embarkation or disembarkation on French territory to the checkpoints for persons entering and leaving the territory. It may be enlarged to include within its perimeter one or more places of accommodation [...] The order to hold in the transit zone shall be made in a reasoned written decision of the head of immigration control or an official having the rank of sergeant designated by him. This decision shall be entered in a register recording the alien's civil status and the holding conditions; [...] the alien shall be free to leave the transit zone at any time for any foreign destination of his choice.

It is important, however, to appreciate, however, that the effects of the "excision" of certain parts of international airports in Europe are much more limited than the spectacular Australian excision. The major difference is that such excisions are not aimed at actually achieving immediate exclusion. Instead, they are deployed to avoid incurring costly legal obligations towards migrants (e.g. obligations to provide legal aid,

302 J. Kokott, "International Decision: Amuur v. France" (1997) 91 A.J.I.L. 147 at 151 ("Many [European] states have established international zones at their international airports to cope with the increasing flow of asylum seekers"). 303 Amuur v. France, [1996] ECHR 25 (25 June 1996) (holding that art. 5(1) of the European Convention on Human Rights, guaranteeing liberty applies to refugees in "international transit zones") 304 Law of 6 September 1991 amending the Ordinance of 2 November 1945 on aliens' conditions of entry into France and residence, Art. 35. accommodation, etc) between the time in which they present themselves to customs officials, and the time where their claim to entry can be processed. Of course, this should not necessarily be taken as an indication that states resorting to such small-scale and limited excision, particularly in Europe, are less interested than the Australian executive in legally erasing the physical presence of unwanted migrants from the territory of the state. It could, instead quite reasonably be conclude that states are constrained in this area by relatively human rights friendly European jurisprudence.305 Such jurisprudence prompts David Weissbrodt, in a report for the UN Commission on Human Rights, to assert that at least as a matter of law in Europe: So-called "international zones" administered by States to detain non- citizens, and where such non-citizens are denied legal or social assistance, are a legal fiction and a State cannot thereby avoid its international human rights responsibilities by claiming that such areas have extraterritorial status.306

While neither Canada nor the United States has followed suit with excisions or international transit zones, both employ other legal fictions to similar ends. The most widely discussed example is the American doctrine of "paroled entry". This doctrine holds that aliens who are apprehended at the border and who are found ineligible to enter the US can be treated as though they are outside the United States, "on the threshold of initial entry." This fiction persists even if the ineligible aliens subsequently physically remain - or worse, are detained - within the United States. One consequence of this legal

305 See for example, Conka v. Belgium, App. No. 00051564/99, Eur. Ct. H.R. (2002) (holding that all individuals, including non-citizens are entitled to protections against arbitrary detention); E/CN.4/Sub.2/2003/23/Add.2 (2003) (see especially 1J81) (holding that states purporting to hold detainees outside their territory remain obliged to respect such detainees' human rights); 22 E.H.R.R. 533 (1996) (see especially TJ43) (holding that migrants in excised territories continue to enjoy all human rights enjoyed by migrants legally on state territory). 306 D. Weissbrodt, Final report on the rights of non-citizens, U.N. Doc. E/CN.4/Sub.2/2003/23 (2003). 307 See generally, A. Wexler "The Murky Depths of the Entry Fiction Doctrine" (2004) 25 Cardozo L. Rev. 2029; K. Mautino, "Entry: What mama never told you about being there" (1994) 31 San Diego L. Rev. 911. 308 Shaughnessy v. United States, 345 U.S. 206 (1953) at 212. fiction is that such aliens are not entitled to territorially limited constitutional protections, thereby allowing authorities to employ expedited removal procedures.30

A second example of a legal fiction developed in the American border control context, one that has occasionally been picked up in Canadian migration jurisprudence,310 is the "functional equivalent to the border" doctrine.311 This doctrine holds that the first location where a person who transits into the country can reasonably be subject to an inspection for customs purposes will be treated as though it were the peripheral territorial border, thereby effectively extending the border inland. This legal fiction is significant both because it can be combined with the paroled entry doctrine and because constitutional due process protections (particularly protections with respect to search, seizure and arrest) are relaxed in the context of border inspections.312

On their face, the paroled entry and the functional equivalent to the border doctrines, like the more spectacular territorial excisions, appear to be technologies that carve out exceptional legal spaces. However, as with the Australian excised zones, on closer inspection it turns out that these technologies are less directed towards creating exceptional spaces, than they are towards delimiting exceptional groups of persons. Non- citizens paroled into the United States, for example, are fictionally erased from state territory no matter where they end up going within that territory.

It is important to note, moreover, that some groups of people are more vulnerable than others to having their presence fictionally erased from state territory in North America. For example, in the United States, racialized persons in locations near an international boundary - who are likely to be suspected by authorities to have recently transited to the country - are frequently subject to search and seizure with relaxed

309 Ibid, at 212; United States v. Ju Toy, 198 U.S. 253 at 263 (1905); Sierra v. Romaine, 347 F.3d 559 at 572 (3d Cir. 2003). 310 R. v. Monney, 153 D.L.R. (4th) 617; 48 C.R.R. (2d) 39; 1997 C.R.R. LEXIS 248 at 181 (Ont. CA) reversed on unrelated grounds by R. v. Monney, [1999] 1 S.C.R. 652. Almeida-Sanchez v. United States, 413 U.S. 266 (1973) [Almeida-Sanchez]; United States v. LaFroscia, 485 F.2d 457 (2d Cir. 1973); United States v. Sanders, 663 F.2d 1 (2d Cir. 1981). P. Rosenzweig, "Functional Equivalents of the Border, Sovereignty, and the Fourth Amendment" (1985) 52 U. Chi. L. Rev. 1119. constitutional standards by virtue of the functional equivalent to the border doctrine. Others in the same locations whose citizenship status is unquestioned, however, typically enjoy the regular full constitutional protections, and thus experience the locations as unexceptional. Indeed, the American case law in this area is rife with persons contesting search and seizure by border control authorities under the functional equivalent to the border doctrine, alleging that they were stopped merely because they appeared to be "Mexican" and were in the vicinity of the Mexico-US border. This troubling possibility that one's perceived ethnicity can lead to the emergence of a border, an exceptional legal site where one's constitutional and due process rights are abridged, lends a distressingly literal gloss to Aoki and Chang's suggestion that: The immigrant may learn after crossing the border that she has not left it behind, that the border is not just a peripheral phenomenon. She may learn... that she carries the border with her. Indeed, to be an immigrant is to be marked by the border.314

In other words, exceptional spaces and exceptional statuses are written not just on maps, but also on the bodies of particular classes of persons.

2.5. Conclusion

The contemporary border control strategies reviewed in this Chapter do something more nefarious than simply carving out territorial spaces in which the surveillance that constitutes the border can be treated as though it occurs outside destination state territory. That is to say, these practices involve something more than what legal geographers might understand as an attempt to effectively redraw state borders. This "something more" is the creation of an entire class of persons who are not entitled to the legal rights that are standard in liberal destination states, an entire class of persons whose presence - either physical or legal - is erased or ignored within liberal legal orders. And who, exactly, is that class of persons? As we have seen, it is largely those who attempt to arrive on destination state territory without successfully passing through the visa requirement / carrier sanction regime, a regime aiming to prevent asylum

See e.g. Almeida-Sanchez, supra note 311; United States v. Ortiz, 422 U.S. 891 (1975). 314 K. Aoki & S. Chang, "Centering the Immigrant in the Inter/National Imagination" (1997) 85 California Law Review 1395 (emphasis added). seekers from accessing rights - particularly the due process rights - in destination state refugee determination systems. In sum, then, both the carrier sanction / visa requirement regime, as well as the various legal strategies reviewed in this chapter that erase the presence of asylum seekers and other unwanted migrants are best understood not as aiming to guard access to destination state territory per se; rather, these strategies serve to limit access to rights that inhere in liberal legal orders.

This attempt to prevent migrants - and especially asylum seekers - from accessing rights that inhere in destination state legal orders tracks closely a concept introduced in the previous chapter:315 Boaventura de Sousa Santos' notion of "abyssal

11/: lines". Recall that according to Santos, since colonial times, Western legal systems have maintained boundaries around the scope of the purportedly universal liberal rights that animate these legal systems. The way this works is that liberal rights regulate only interactions on "this side of the line", which is to say, among full citizens of the affluent West. In contrast, the relations between those on "this side of the line" and those on "the other side of the line" (e.g. colonial subjects, indigenous peoples, undocumented migrants, asylum seekers, terror suspects, etc) are regulated in a manner that is exceptional: standard liberal governance is replaced by colonialist governance structures based upon logics violence and appropriation. In order to prevent this exceptional treatment of "others" from compromising the purported universality of liberal norms at the heart of Western legal systems, the "other side of the line" must be constructed as "a non-area in legal and political terms, an unthinkable ground for the rule of law, human rights, and democracy." That is precisely what destination states aim to accomplish through the strategies reviewed in this chapter involving the literal relocation of border control activities to extra-territorial sites. Undoubtedly the starkest example of this phenomenon is Australia's "Pacific solution" and the Australian immigration detention centre - the "prison inside a prison" - on the tiny island nation of Nauru, beyond the reach of Australian law.

315 See above, Chapter I, notes 12-18 (and accompanying text). 316 Santos, supra note 2 at 4-5. 1X1 Ibid. It is important to remember, however, that what Santos calls "the other side of the line" is not necessarily a territorially delimited site. Rather, Santos argues that global abyssal lines emerge wherever classes of "others" are systematically subject to governance according to logics of violence and appropriation rather than being subject to standard models of liberal governance that accord with basic liberal rights. Both the spectacular and every-day border control strategies surveyed in this chapter offer a clear picture of some of the processes through which such global abyssal lines are created and maintained around undocumented migrants and asylum seekers, irrespective of where these classes of non-citizens happen to be physically located. Indeed, given these border control strategies, it is unsurprising that, according to Santos, the undocumented migrant or asylum seeker "carries along with her the abyssal global lines that defines radical exclusion an legal non-existence."

All of this to say, then, that the present chapter has attempted to establish that one of the primary aims of key border control strategies in liberal destination states is to maintain the ability of these states to regulate undocumented migrants and asylum seekers in a manner that is legally exceptional - or, in Santos' terms, to keep undocumented migrants and asylum seekers on "the other side of the line", regardless of their actual locations. By treating undocumented migrants and asylum seekers as either physically elsewhere or as legally non-existent, the border control strategies reviewed in this chapter allow destination states authorities to act upon these unwanted classes of non-citizens exceptionally, in a manner that departs from standard liberal rights without compromising the purported universality of those rights.

The reason I have taken pains to demonstrate how a number of key strategies in destination state border control regimes operate this way is that, as we shall see in Chapter III, virtually all areas of border control law can be helpfully understood as involving exceptional forms of governance that depart from standard liberal principles. Indeed, as I will now argue, border control law in general operates as a kind of top-down instrument of social control, a one-way projection of power by the state onto migrants. This is significant because scholars operating with sophisticated understandings of legal

Ibid, at 15-16. normativity have persuasively argued that the values animating law as a form of social order are incompatible with attempts by state authorities to engage in top-down exercises of social control - or at least, that these values represent an important resource for critiquing and challenging the use of law as a technology for top-down social control. It is to a discussion of to the work one scholar who adopts such a sophisticated view of legal normativity, the American legal theorist Lon Fuller, that we now turn. CHAPTER III: THE LEGAL PATHOLOGIES OF BORDER CONTROL

In the literature of jurisprudence, law is generally defined as consisting of those rules that emanate from some human source that is itself regarded as formally authorized to enact or declare law. In the absence of explicit constitutional limitations, this human source can enact anything it sees fit into law. Its laws may be wise or foolish, intelligible or obscure, just or unjust, prospective or retrospective in effect general or specific in their coverage, published or unpublished, etc. In all this variety, it is assumed, there is no structural constancy, except that imposed by the formal rule which identifies the formal source of law. But this view overlooks the... informal limitations implicit in any attempt to subject human conduct to the governance of rules.

- Lon Fuller1

3.1. Introduction

In my first Chapter, I explored what I termed the "two-step of liberal philosophy" and explained how this two-step leads many liberal political philosophers to understand border control as an exceptional subject, one for which regular liberal principles do not apply with their full force. Chapter II then chronicled several key strategies that destination state authorities use to maintain border control as a legally exceptional area of law in which standard human rights norms - especially due process norms - are significantly attenuated.

The present Chapter sets out what I view to be troubling about exceptional border control strategies from the perspective of legal theory. In particular, I suggest that these strategies involve the use of legal instruments as one-way projections of social power. I argue that, in effect, most contemporary border control law seeks to maintain a particular type of relation between the state and non-citizens at the moment in which border control occurs. This relation is one that emphasizes the state's ability to unilaterally act upon non-citizens and minimizes the obligations of the state to respond to - or to interact with - them. Drawing on Lon Fuller's interactional theory of law, however, I argue that legal

1 L. Fuller, "Irrigation and Tyranny" (1965) 17 Stan. L. Rev. 1021 [Fuller, "Irrigation"] at 1028-9.

151 relations cannot be structured in purely unilateral terms without producing visible strains on legality. These strains on legality - or legal pathologies - that Fullerian scholars expect to encounter where legal forms are deployed as top-down projections of power are, I argue, pervasive in the border control setting. I conclude by suggesting that if border control law operates as a top-down projection of social control then those of us interested the rights of non-citizens should pay attention to what Fullerian scholars have identified as resources for challenging unilateral projections of social power that take legal forms.

3.2. Lon Fuller's Interactional Conception of Law

Most in the legal academy encounter Lon Fuller in three contexts. First and foremost, Fuller is widely read as a proponent for the notion that, contra the strenuous assertions of positivists, there is a necessary connection between law and morality. Second, generations of law students have encountered Fuller's Case of the Speluncean Explorers as a conceptual device with which to work through debates between positivist, natural law and realist approaches to legal interpretation. Third, Fuller was an influential American contracts scholar, and his famous articles on consideration and form4 and on reliance interests5 continue to figure prominently in contract law casebooks.

In my view, Fuller's ongoing importance to the legal academy lies not in any of these specific contributions. Rather, it lies in the constant theme running throughout his far ranging work. This theme is the attempt to replace the dominant view of law as a

" See e.g. L. Fuller, The Morality of Law (Rev. ed.) (New Haven: Yale U.P., 1969) [Fuller, MOL] at 33-94. See also the famous debate between Hart and Fuller over the status of Nazi "law". H.L.A. Hart, "Positivism and the Separation of Law and Morals" (1958) 71 Harv. L. Rev. 593 [Hart, "Positivism"]; L. Fuller, "Positivism and Fidelity to Law - A reply to Hart" (1958) 71 Harv. L. Rev. 630 [Fuller, "Positivism"]. 3 Lon Fuller, "The Case of the Speluncean Explorers" (1949) 62 Harv. L. Rev. 616. 4 L. Fuller, "Consideration and Form" (1941) 41 Colum. L. Rev. 799. 5 L. Fuller & W. Perdue, "The Reliance Interest in Contract Damages" (1936-1937) 46 Yale L.J. 52, 373. technology for top-down social control with a view of law as a set of norms that individuals creatively employ to govern their interactions with one another.

It is in this respect unfortunate that, of all his published scholarship, Lon Fuller's most widely read text, The Morality of Law,1 is the most susceptible to being misread as evoking a top-down theory of law. This susceptibility to misreading is due to an oft-cited passage that presents an allegory about hapless King Rex.

3.2.1. Hapless King Rex & the Inner Morality of Law

King Rex is a newly enthroned monarch who desperately wants to be a good lawgiver for his subjects. In spite of his good intentions, Rex fails spectacularly as a lawgiver because he neglects to adhere to what Fuller calls the "internal morality of law."8

In his first attempt to create law, Rex (1) fails to achieve any rules at all, instead deciding issues on a purely ad hoc basis. Next, he (2) enacts rules, but neglects to publicize rules to his subjects. He then (3) corrects this omission by publicizing retroactive rules. After that, he (4) publicizes rules in advance that are incomprehensible. Responding to his growing number of critics, he (5) publicizes clear rules in advance, but it turns out that these rules all contradict one another. Then, frustrated with his malcontent subjects, he (6) publicizes clear non-contradictory rules in advance, but these rules demand the impossible. To correct this last problem he (7) introduces frequent changes to rules. And finally, once the pace of changes to the rules subsides, his subjects discover that he (8) does not actually apply the rules he announced. The end of this allegory is a sad one. With his long suffering subjects contemplating revolt,

6 This view is shared by several contemporary scholars. See e.g. J. Brunnee & S. Toope, "International Law and Constructivism: Elements of an Interactional Theory of International Law" (2000) 39 Colum. J. Transnat'l L. 19 at 49 ("Contemporary commentators identify [his] "interactive" understanding of law, rather than the linkage of law and a special kind of morality, as Fuller's most fruitful insight"). 7 Fuller, MOL, supra note 2. 8 Ibid, at 33-38. Ibid. Rex suddenly died, old before his time and deeply disillusioned with his subjects. The first act of his successor, Rex II, was to announce that he was taking powers of government away from the lawyers and placing them in the hands of psychiatrists and experts in public relations. This way, he explained, people could be made happy without rules.10

After relating this allegory, Fuller suggests that each of King Rex's failures points to a corresponding principle of "legality." In particular, legal rules should be: (1) general; (2) publicized to the affected parties; (3) proscriptive; (4) understandable; (5) non- contradictory; (6) mindful of demanding only conduct within the powers the affected party; (7) changed only with reasonable frequency; and (8) administered as announced.11 Fuller goes on to suggest that, [a] total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all... Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he had acted, or was unintelligible, or was contradicted by another rule in the same system, or commanded the impossible, or changed every minute. It may not be impossible for a man to obey a rule that is disregarded by those charged with its administration, but at some point obedience becomes futile.12

To put this point in more general terms, Fuller's argument about the principles of legality is that there are a number of procedural rules that must be adhered to by any person or institution that wishes to create law. If these rules are persistently and systematically violated, the lawgiver may well continue (for some time at any rate) to exert institutional power over others, but in so doing they will no longer be involved a project that can be recognized as "law." As Fuller puts it: A mere respect for constituted authority must not be confused with fidelity to law. Rex's subjects... remained faithful to him as king throughout his long and inept reign. They were not faithful to his law, for he never made any.13

3.2.2. Critics of the Inner Morality of Law

10 Ibid, at 38. 1' Ibid, at 39. 12 Ibid, (emphasis added). 13 Ibid, at 41 (emphasis added). Fuller's list of eight ways to fail to make law and his corresponding eight principles of legality has been cited as a persuasive account of the rule of law by legal thinkers who adopt a wide variety of perspectives.14 However, Fuller's insistence that the enactments of constituted authorities may lose their quality as "law" by departing extensively from the principles of legality has proved more controversial. In other words, Fuller's critics object to his assertion that, taken together, the principles of legality amount to an "inner morality of law"15 or the "morality that makes law possible."16

H.L.A. Hart famously articulated an objection along these lines. According to Hart, Fuller's claim that the principles of legality amount to an inner morality of law is a "source of confusion."17 The cause of the confusion Hart identifies is that Fuller purportedly fails to distinguish between mere purposive activity and morality: Poisoning is no doubt a purposive activity, and reflections on its purpose may show that it has its internal principles. ("Avoid poisons however lethal if they cause the victim to vomit," or "Avoid poisons however lethal if their shape, color, or size is likely to attract notice.") But to call these principles of the poisoner's art "the morality of poisoning" would simply blur the distinction between the notion of efficiency for a purpose and those final judgments about activities and purposes with which morality in its various forms is concerned.18

According to Hart, then, Fuller's eight principles identify not an internal morality of law, but instead only guidelines that rational lawgivers should follow in order to effectively exercise control over their subjects, much as poisoners need to follow certain guidelines in order to succeed in poisoning their victims.19 Hart thus contends that, far from demonstrating a necessary connection between law and morality, Fuller's principles of

See e.g. R. Dworkin, "Philosophy, Morality, and Law - Observations prompted by Professor Fuller's Novel Claim" (1965) 113 U. Pens. L.R. 668 at 669; J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, Mass: MIT Press, 1996) at 144; H.L.A. Hart, The Concept of Law (2nd ed.) (Oxford: Oxford U.P., 1994) [Hart, COL] at 207; J. Finis, Natural Law and Natural Rights (Oxford: Clarendon, 1980) at 270-1. 15 Fuller, MOL supra note 2 at 42. ^ Ibid, at 33. 17 H.L.A. Hart, "Book Review - The Morality of Law' (1965) 78 Harv. L. Rev. 1281 [Hart, "Review"] at 1286. l&Ibid. at 1286-7. 19 Ibid, at 1287. legality are morally neutral; issues of morality only arise once we inquire into the ends to which the control is put. Moreover, Hart asserts not only that there is no necessary connection between law and morality, but also that it is dangerous to claim that a validly enacted rule ceases to be a law merely because it violates the principles of legality. As Hart sees it, such a view may lead to a serious confusion between the questions of whether a rule is a law, and whether that rule is a good law that ought to be obeyed. In Hart's words, So long as human beings can gain sufficient co-operation from some to enable them to dominate others, they will use the forms of law as one of their instruments. Wicked men will enact wicked rules which others will enforce. What surely is most needed in order to make men clear-sighted in confronting the official abuse of power, is that they should preserve the sense that the certification of something as legal valid is not conclusive of the question of obedience, and that, however great the aura of majesty of authority which the official system may have, its demands must in the end be submitted to a moral scrutiny. This sense, that there is something outside the official system, by reference to which in the last resort the individual must solve his problems of obedience, is surely more likely to be kept alive among those who are accustomed to think that rules of law may be iniquitous.

3.2.3. Responding to Critics: A Horticultural Hypothesis

Hart's objection, which many positivists view as fatal to Fuller's project, to my mind reveals more about positivists' (mis)understanding of law than it does any failure in Fuller's argument. To appreciate the limits of Hart's objection, consider the following hypothetical scenario. Suppose I announce to all the plants in my home a set of clear and coherent prospective rules that I intend to follow in my horticultural practices. For example, I will water all plants every Tuesday, I will aggressively trim every plant that grows beyond a certain dimension, and I will discard any plant that does not flower within a two-year period. Suppose, further, that I faithfully apply these rules. It would stretch the term "law" beyond all recognition to assert that the mere fact that I have faithfully followed Fuller's eight principles of legality means that I have successfully generated a legal horticultural regime in my home. Something more is needed: a serious attempt to participate in the project of law.

M Ibid, at 1287 and 1291. Hart, COL, supra note 14 at 210. Fuller, of course, did not need to address the issue in the King Rex allegory because he defined the issue away. The story, after all, is prefaced upon King Rex's 99 desire to create law for his subjects. Fuller's decision to cast a hapless monarch as his protagonist, however, left his allegory open to an understandable misreading. To appreciate the source of this openness to misreading, it is helpful to consider why Fuller's eight principles of legality seem appropriate for King Rex, but out of place in my horticultural practices.

One possible explanation for why King Rex should follow Fuller's eight principles, whereas the same principles seem inappropriate in my horticultural regime, would begin with the notion that Kings wish to take advantage of the capacity for self- direction of their subjects. That is to say, Kings do not seek to act upon the bodies of their subjects, for example by killing them, by locking them up, or by physically manipulating them. Rather, Kings seek to direct the behavior of their subjects, leaving the subjects in a position to make decisions, albeit constrained decisions.

To see why this is the case, it is helpful to turn to another of Fuller's allegories. This second allegory is about an intelligent tyrant, "bent entirely on serving his own interests."24 In working out how to exert his power over a community an intelligent tyrant, Fuller tells us, will realize, "that he does not increase his own freedom of action

9 S by restricting that of those under his rule."" In other words the relation between the freedom of the tyrant and the freedom of the tyrant's subjects is not zero-sum. Fuller makes this point in his characteristically folksy style: [0]ur intelligent tyrant now proceeds to plan how to employ his subjects as tools for the realization of his purposes. A little reflection will remind him that he cannot effectively use another human being as a tool without according to him some power of choice, some opportunity to use his own

22 Fuller, MOL, supra note 2 at 34 ("Rex was resolved to.. .make his name in history as a great lawgiver"). Fuller described this type of relation as one where, "A is attempting to accomplish some purpose by acting upon an inert B." Ibid, at 194. 24 L. Fuller, "Freedom as a Problem of Allocating Choice" (1968) 112:2 Proceedings of the American Philosophical Society 101 [Fuller, "Choice"] at 105. Ibid. discretion. When I hire the neighbor's boy to mow my lawn I do not begin by imposing on him a long and abstruse definition of what I mean by "lawn"; I assume that he will have the good sense not to push the mower into my tulip bed.

A tyrant, then, must accord some degree of discretion to subjects as a matter of simple expediency. That does not end the story, however. A truly intelligent tyrant, Fuller contends, will quickly learn that human beings serve as much more effective tools if they are happy, if, in other words, they feel that in accomplishing the ends of the tyrant, they are serving their own ends as well. 7 Similarly, the tyrant will also eventually learn that one ought to foster the development of one's subjects, to "enhance and expand their 98 powers beyond those demanded by the immediate job they are doing for their master." As such, they will be able to serve as much more useful tools in the future. Fuller concludes: Our tyrant, you will observe, has found himself caught in a kind of progression. He started by seeking... efficiency, he then moved at least some way toward doing what is essential for human happiness, and he may end by fostering conditions most conducive to human development. If he traverses fully these three" steps of this progression he will, of course, finish by ceasing to be a tyrant. How far he moves toward that outcome will depend less on the balance of good and evil within his soul than it does the power of his brain to discern the conditions essential for the 99 success of what is, by its very nature, a cooperative exercise. Based on this hopeful allegory about Fuller's intelligent tyrant, we might attempt to locate the central distinction between King Rex's attempts to create law and my hypothetical horticultural regime by paying attention to whether the system of rules involves what Fuller calls a "cooperative exercise".

3.2.4. The Principles of Legality & the Capacity for Self-Direction

The simplest version of such an argument would run as follows. Let us posit that Fuller's principles of legality are appropriate to the extent that a system of rules is directed towards drawing upon its addressees' capacity for self-direction. Few, apart

26 Ibid, at 105-6. 21 Ibid, at 106. 28 Ibid. ' Ibid, (emphasis added). perhaps from floral animists, would suggest that my horticultural regime aspires to draw upon my plants' capacity for self-direction; most assume that plants lack such capacity. Kings on the other hand - including, as we have seen, those with tyrannical aspirations - do draw on this capacity of their subjects. Perhaps, then, this accounts for why Fuller's eight principles seem inappropriate for my horticultural regime, but appropriate for King Rex.

Joseph Raz offers a reading of the rule of law along the lines of this simple explanation. Raz asserts that the basic aim of law is to provide authoritative reasons for action.30 A legal system claims that those subject to it should obey the law simply because it is the law. In order to be able to effectively make such a claim, the law must be capable of guiding self-directed human behavior. Raz suggests that this capacity is to law what sharpness is to knives. If an object that we normally think of as a knife is sufficiently lacking in sharpness that it is unable to fulfill its function of cutting, then, this reasoning runs, it is no longer really a knife. Similarly, if a rule that we normally think of as a law is sufficiently lacking in clarity, or is contradictory, or is impossible to adhere to, then it cannot fulfill its function of providing authoritative reasons for action, and thus it is no longer really a law. The same can be said for a legal system that is systematically incapable of providing authoritative reasons for action. For Raz, because law claims to provide authoritative reasons for action, because, in other words, it involves a constituted authority exerting what Fuller called "social power" over its subjects, law must adhere to certain procedural values. In Raz's view, these procedural values - which are similar to those identified by Fuller - are purely instrumental. That is to say, they are morally neutral until one examines the ends to which laws (like knives) are put.31

In evaluating this simple explanation, however, it is imperative to appreciate that, despite Fuller's optimistic suggestion that tyrants might be led by intelligent self-interest to embrace forms of social order that will lead them to cease being tyrants, Fuller would not assert that an intelligent tyrant must, as a matter of expediency, always abide by the

30 See generally, J. Raz, The Authority of Law (Oxford: Clarendon P., 1979). 31 Ibid, at 226. See also C. Murphy, "Lon Fuller and the Moral Value of the Rule of Law" (2005) 24 Law & Philosophy 239 at 246-9; D. Dyzenhaus, Hard Cases in Wicked Legal Systems (Oxford: Clarendon P., 1991) [Dyzenhaus, Hard Cases] at 19 eight principles of legality. Instead, Fuller accepts that it is possible to exercise social power over others by means that depart from the principles of legality.

To grasp the significance of Fuller's acknowledgement that social power may be exercised in a manner that departs from principles of legality, we must situate his intelligent tyrant allegory within his larger view that all power relations draw on human beings' capacity for self-direction. Fuller understands power relations along the following lines: When we say that A has power over B we do not mean simply that it lies within A's capacity to destroy B; even a lunatic with an axe may have this pointless power. When we speak of power as an aspect of social relations, we mean that the power-holder, A, while allowing B to continue function in some respects as a human being, has the capacity to control B's actions in certain respects. In other words, A is in a position to take advantage of B's capacity for self-direction and to shape B's exercise of that capacity for purposes of his own, which may of course include that of benefiting B. The fact that A must leave in the addressee of his power some remnant at least of his capacity for self-direction introduces into every power relation an element of interaction or reciprocity.32

There is, in other words, an element of reciprocity related to the capacity for self- direction in all power relations. Fuller did not, however, conclude on this basis that all human relations must be structured in a manner that comports with the eight principles of legality. To the contrary he contended that law is only one of a number ways of ordering social relations. Indeed, he identified at least nine different mechanisms of social order: 1. The coordination of expectations and actions that arises tacitly out of interaction; illustrated in "customary law" and "standard practice" 2. Contract 3. Property 4. Officially declared law 5. Adjudication 6. Managerial direction 7. Voting 8. Mediation

Fuller, 'Irrigation", supra note 1 at 21. See generally, K. Winston, ed., The Principles of Social Order: Selected Essays of'Lon L. Fuller, Rev. ed. (Oxford: Hart Publishing, 2001) [Winston, Principles}. 9. Deliberate resort to Chance; "tossing for it"

Throughout his career, Fuller studied each of these modes of social order in detail. He took particular care, however to distinguish between two particular forms of social order: managerial orders and legal orders.

Fuller's distinction between managerial and legal ordering focuses on the way that, in managerial orders, subordinates apply directives issued by superiors to further the ends set by superiors. Managerial orders, Fuller tells us, "regulate primarily the relations between the subordinate and his superior and only collaterally the relations of the subordinate with third persons."36 The paradigmatic example of a managerial order is a military order, where subordinates undertake tasks set by superiors, often without being privy to the ends to which the task is directed. The key to the proper functioning of managerial orders in such circumstances is a clear hierarchy of authority, a "neat chain of

TO command".

L. Fuller, "The Role of Contract in the Ordering Processes of Society Generally" in K. Winston, ed., The Principles of Social Order: Selected Essays ofLon L. Fuller, Rev. ed. (Oxford: Hart Publishing, 2001)187 [Fuller, "Contract"] at 188-9. 35 For a discussion of custom, see L. Fuller, "Human Interaction and the Law" (1969) 14 Am. J. Juris. 1 [Fuller, "Human Interaction"]. For a discussion of contract, see L. Fuller, Basic Contract Law (St. Paul, Minn.: West Publishing, 1947). For a discussion of property, see L. Fuller, "Adverse Possession: Occupancy of another man's land under mistake as to location of a boundary" (1928) 7 Or. L. Rev. 329. For a discussion of legislation or officially declared law see, L. Fuller, Anatomy of Law (New York: Praeger, 1968) at 43-84. For a discussion of adjudication see, L. Fuller, "The Forms and Limits of Adjudication" (1978) 92 Harv. L. Rev 353. For a discussion of managerial discretion see L. Fuller, "Governmental Secrecy and the Forms of Social Order" in C. Freidrich (ed.), Community: Nomos II (New York: Liberal Arts P., (1959). For a discussion of voting, see Fuller, "Choice", supra note 24. For a discussion of mediation, see L. Fuller, "Mediation: Its forms and functions" (1971) 44 S. Cal. L. Rev. 305. For a discussion of chance see, Fuller "Contract", supra note 34 at 189-90. 36 Fuller, MOL, supra note 2 at 207. 37 Fuller drew often on two images when discussing managerial orders: the military and centrally directed economies. See e.g., Fuller, "Contract", supra note 34 at 189: It will be noted that "managerial direction" as used here carries a very broad connotation. It extends the concept of management beyond the usual context of economic activity to include, say, a direction and coordination of efforts to achieve military... ends. 38 Fuller, MOL, supra note 2 at 113. In legal orders, on the other hand, individuals (though Fuller uses the terms "citizens", "individuals", and "legal subjects" interchangeably) follow legal rules as they

in conduct their own affairs. Legal rules, according to Fuller, "serve the primary purpose of setting the citizen's relations with other citizens and only in a collateral manner his relations with the seat of authority from which the rules proceed." Legal rules thus do not act primarily as a constraint on those subject to them, but rather as a "facility enabling men to live a satisfactory life in common." In other words, law is not, like management, a matter of directing other persons how to accomplish tasks set by a superior, but is basically a matter of providing the citizenry with a sound and stable framework for their interactions with one another, the role of government being that of standing as a guardian of the integrity of this system.

Or again, [fjhe law does not tell a man what he should do to accomplish specific ends set by the lawgiver; it furnishes him with base lines against which to organize his life with his fellows... [T]he establishment of the base lines is not an exercise in managerial discretion. Law provides a framework for the citizen within which to live his own life.43

3.2.5. The Principles of Legality & Interacting with Reference to Rules

It is impossible to overemphasize the significance of the distinction between law and managerial ordering for Fuller's understanding of the principles legality. It is on the basis of this distinction that, for Fuller, law is not a technology through which a constituted authority - a tyrant - imposes itself upon those subject to its power. Law is not, in other words, "a one-way projection of authority." Instead, law is a project that individuals jointly engage upon when they attempt to govern their interactions with one another by reference to rules.

5' Ibid, at 207. 40 Ibid, at 207-8. 41 Ibid, at 223 42 Ibid, at 210. 43 Fuller, "Human Interaction", supra note 35 at 24. 44 Fuller, MOL, supra note 2 at 204. 45 Ibid, at 206. Fuller contends that this project of law, an aspirational activity demanding ongoing efforts on the part of those who would participate in it, is necessarily interactional. By "interactional", Fuller means that a functional legal system "depends on a cooperative effort - an effective and responsible interaction - between law giver and subject." In other words, the lawgiver acting alone cannot maintain a legal system.

Gerald Postema helpfully distinguishes two distinct lines of reasoning in Fuller's thought with respect to why legal systems are necessarily interactional.48 The first, which Postema calls the "vertical interaction thesis," is the notion that "a legal order depends on effective interaction and cooperation between citizens and law-making and law-applying officials."49 This view is implicit in Fuller's principles of legality, and in particular, his eighth principle, that the law must be applied as it is announced.50 As Fuller put it: If we accept the view that the central purpose of law is to furnish base lines for human interaction, it... becomes apparent why...law...depends upon the establishment of stable interactional expectancies between lawgiver and subject. On the one hand, the lawgiver must be able to anticipate that the citizenry as a whole will accept as law and generally observe the body of rules he has promulgated. On the other hand, the legal subject must be able to anticipate that government will itself abide by its own declared rules when it comes to judge his actions... A gross failure in the realization of either of these anticipations - of government toward citizen and of citizen toward government - can have the result that even the most carefully drafted code will fail to become a functioning legal system.

Importantly, not only do legal orders rely upon these stable expectations between individuals and lawgivers, but they also require relatively stable expectations as between individuals as well. For law to be successful in providing baselines for self-directed behavior, interacting parties must be able to anticipate how others will understand the applicable rules, as well as to predict whether they will comply with the rules. Lawgivers will, therefore, partly shape rules in anticipation of how individuals are likely to interpret

'"'Ibid, at 223. 47 Ibid, at 219. 48 G. Postema, "Implicit Law" in W. Witteveen (ed.), Rediscovering Fuller: Essays on implicit law and institutional design (Amsterdam: Amsterdam U.P., 1999) 255 at 260. Ibid. 50 Fuller, MOL, supra note 2 at 81 -91. 51 Fuller, "Human Interaction", supra note 35 at 24. and respond to them. Similarly, individuals will interpret rules relative to how the lawgiver is likely to apply those rules, and relative to how other individuals are likely to respond to them. The entire project only works - i.e. law only successfully provides baselines for social interaction - if expectations are stabilized not only between lawgivers and individuals, but also between individuals.52 There is, therefore, a horizontal aspect to the "vertical interaction thesis."

The second line of Fuller's thought regarding stabilized interactional expectations that Postema helpfully identifies is what he terms the "congruence thesis." This is the notion that "a substantial degree of congruence between enacted laws and background informal social practices... governing horizontal relations among citizens is necessary for the existence of law."

To see what Postema means by the congruence thesis it is useful to contrast Fuller's understanding of legal interpretation with Hart's. Hart famously asserted that all rules have both a "core" meaning that is clear and unproblematic, and a "penumbra" where questions can legitimately be posed about how the rule ought to be interpreted. Hart offers the example of a simple legal rule prohibiting vehicles from entering a public park. "Plainly," Hart tells us, "this forbids an automobile, but what about bicycles, roller skates, toy automobiles?"56 Automobiles, this reasoning runs, fall into the core of the rule. If a case were to arise regarding bicycles, roller skates, or toy automobiles, however, we would find ourselves in the penumbra of the rule. In such circumstances, "someone must take responsibility of deciding that words do or do not cover some cases in hand with all the practical consequences of this decision."57 In undertaking this responsibility to decide, Hart concedes, the decision-maker must ask not only what the rule is, but also what the rule ought to be in light of the rule's purpose or aspiration. But, Hart insists,

Postema, supra note 48 at 264. 53 Ibid, at 260 54 Ibid. 5 Hart, "Positivism", supra note 2 at 607. 56 Ibid. 57 Ibid. 58 Ibid, at 614 ("laws are incurably incomplete and we must decide penumbral cases rationally by reference to social aims"). the exercise is very different in core cases, where the meaning or applicability of the rule is not in question. In such circumstances, a decision-maker simply applies the rule as it is, and is rightly barred from inquiring into what the rule ought to be. For Hart, to blur this distinction - to posit a general connection between law and morality, between rules as they are and rules as they ought to be - would be to assert that, all legal questions are fundamentally like those of the penumbra. It is to assert that there is no central element of actual law to be seen in the core meaning which rules have, that there is nothing in the nature of a legal rule inconsistent with all questions being open to reconsideration in light of social policy.

In other words, unless we accept that there is a core meaning to legal rules, we must abandon the notion that rules can be authoritative or that cases can fall clearly within a rule.60 It would seem that, for Hart, if we abandon the notion of authoritative rules, we also abandon the very possibility of the rule of law.

Fuller's view of legal interpretation departs dramatically from Hart's. Remember that, for Fuller, legal norms must be interpreted by their addressees (who will interpret the norms partly with reference to how others, including officials, are likely to interpret them). Legal norms must, as a result, be meaningful in light of the addressees' social contexts. That is to say, individuals must be able to take a legal norm and work out how it applies to their particular interactions. As Postema puts it, "[ejnacted norms make sense as practical guides for self-directing agent (that is, are followable as norms) only when they are set in the context of concrete practices, attitudes, and forms of social interaction."

Contra Hart's assertions about "core" and "penumbral" cases, Fuller suggests that, even in the easiest cases, the terms of an enacted norm do not in themselves indicate how the norm is relevant to particular practices or interactions. Instead, a self-directing agent can only ever make sense of a norm by figuring out the norm's purpose. Only once the

Ibid, at 615. Ibid. Postema, supra note 48 at 266. norm's purpose is clear can the self-directing agent ask how the norm ought to be interpreted in particular contexts.

Fuller explains how this process works by drawing on the example Hart raises regarding the prohibition of vehicles in a public park. The reason it appears obvious that an automobile is included in this prohibition is not, as Hart would have it, because automobiles fall clearly within the linguistic definition of the term vehicle. Rather, it appears obvious because we all understand the purpose of the prohibition. Suppose that one of the purposes of a park is, for example, to create a public green space that offers a safe environment where children may play. If that is the purpose of parks, then it makes sense that automobiles zooming through parks will pose a danger, and thus ought to be excluded. Fuller then pushes Hart's example a step further, and asks what would happen if a group wanted to mount a World War II truck, in working condition, on a pedestal in the park as a war memorial. Just as we have no trouble identifying that automobiles are covered by the prohibition on vehicles in the park, we have no trouble identifying the war memorial as falling outside (or at least, only problematically falling within) the prohibition.64 When read against our supposition regarding the purpose of parks, because the war memorial does not pose a danger to children playing in the park, the memorial is compatible with social expectations regarding how parks are used. Note that the reason we can identify both of theses cases as either easy or difficult - the reason they fall within what Hart would characterize as the "core" or the "penumbra" of the rule - is not related to the linguistic definition of "vehicle". Instead, the reason is located in a social consensus about what a park is for and thus what the prohibition aims to accomplish. For Fuller, then, the meaning of legal norm is never merely a matter of

Fuller, "Positivism", supra note 2 at 663. Ibid.: If the rule excluding vehicles from parks seems easy to apply in some cases, I submit that this is because we can see clearly enough what the rule "is aiming at in general" so that we know there is no need to worry about the difference between Fords and Cadillacs. If in some cases we seem to be able to apply the rule without asking what its purpose is, this is not because we can treat a directive arrangement as if it had no purpose. It is rather because, for example, whether the rule be intended to preserve quiet in the park, or to save carefree strollers from injury, we know, "without thinking," that a noisy automobile must be excluded. linguistic analysis, even in easy cases. Rather, the meaning of the norm is located in shared social practices in social interactions: if the social practices change, the meaning of the legal norm changes.

This simple point regarding interpretive practices is deeply significant for Fuller's conception of law. Where a legal norm does not make sense in light of particular social practices, where there is a lack of congruence between social practices and legal norms, individuals will find it difficult if not impossible to work out for themselves the implications of these norms for their own particular circumstances, confident that the reading they give the norms is likely to be sufficiently close to readings others with whom they must interact give them.66

In such circumstances, individuals can only fall back on the decisions of institutional actors in particular cases (e.g. state officials, courts, etc.). To be sure, individuals will attempt to work out patterns of likely institutional decision-making in advance. However, to the extent that these decisions are arbitrary, that is to say to the extent that the decisions do not track onto relatively settled patterns of social interaction, individuals will be unable to discern a pattern that is meaningful in their social contexts. In this scenario, individuals are simply subject to the ad hoc and ex post facto decision making processes of officials. Individuals thus cannot engage in the process of governing their interactions with others by resort to rules that depart sharply from relatively stable social interactions.67

When what Postema calls Fuller's vertical interaction thesis and congruence thesis are combined, it becomes evident that law, understood as aspiring to provide guideposts to facilitate human interaction, relies upon the development of relatively stable interactions between individuals, between individuals and lawgivers, and within society more broadly.

In this respect Fuller's theory of interpretation is similar to that of Robert Cover. See generally, R. Cover, "Nomos and Narrative" (1983) 97 Harv. L. Rev. 4. Postema, "Implicit Law", supra note 48 at 267. 67 Ibid, at 267-8. Managerial ordering, on the other hand, does not necessarily rely on these stable patterns of expectation. Managerial ordering, it will be remembered, is directed primarily at setting out the terms of the interaction between superiors and inferiors inhabiting a neat chain of command. The interaction between those upon whom the managerial order asserts itself is imagined unilaterally. Superiors, through their inferiors, act upon those subject to the managerial order, though they may interact with those within the managerial order. It is, thus, important to distinguish between two levels of analysis: the relations within an administrative order, and the relations between the administrative

CO order and those upon whom the administrative order acts.

Fuller contends that five out of the eight principles of legality are appropriate to managerial orders as a matter of expediency in respect of the interaction between superiors and inferiors within the order. Superiors must, for example, communicate - or publicize - their orders to subordinates. Superiors' orders, in order to be effective, should also be clear, non-contradictory, possible to act upon, and changed with only reasonable frequency. Fuller notes that, "[cjarelessness in these matters may seriously impair the 'efficacy' of the managerial exercise."

The remaining three principles of legality, however, are less relevant to the managerial context. While it may be expedient in some circumstances for managers to employ general standing rules, ad hoc procedures may in other circumstances be appropriate. Thus the first principle of legality, generality, is not applicable to managerial orders.70 Moreover, even if a managerial order develops a set of general standing procedures, it poses no problem for a managerial order if managers occasionally direct inferiors to depart from standard practice in particular cases. As Fuller puts it: In actual practice managerial control is normally achieved by standing orders that will relieve the superior from having to give a step-by-step direction to his subordinate's performance. But the subordinate has no justification for complaint if, in a particular case, the superior directs him to depart from the procedures prescribed by some general order.

68 See Fuller, MOL, supra note 2 at 207. See also above, notes 36-38 (and accompanying text). 69 Fuller, MOL, supra note 2 at 208. 70 Ibid. Ibid. That is to say, the key eighth principle of legality, congruence between declared rules and official action, is inapplicable to managerial orders. Finally, questions regarding retrospective rules are out of place in the managerial context, as "no manager retaining a semblance of sanity would direct his subordinate today to do something on his behalf

79 yesterday."

Notice, however, that Fuller's analysis here is solely concerned with the internal relations between superiors and inferiors within managerial orders. That is to say, he examines to what extent superiors in managerial orders would do well to follow the principles of legality in the directions they give to subordinates within an institutional structure. His analysis is not principally concerned with the external relation between the managerial order and those upon whom the order acts (i.e. individuals who are the object of the social control exercised by the managerial order but who do not inhabit a particular institutional role within the managerial order). It seems likely, however, that with respect to this external relation all the principles of legality are purely matters of expediency, which may be appropriate in some circumstances but not in others. Admittedly, Fuller did not systematically examine the connection between managerial ordering and principles of legality through this lens. However, one can get a good sense as to why the principles of legality can be considered purely a matter of expediency in the external relations between a managerial order and the persons upon whom that order acts by examining the famous debate between Fuller and H.L.A. Hart on the status of Nazi "law".

The Hart-Fuller debate on Nazi "law" began with an article that Hart wrote in the Harvard Law Review in defence of the positivist assertion that there is no necessary connection between law and morality. In that article Hart contests assertions made by Radbruch, among others, that there is a link between the historical failure of many Germans to resist morally objectionable Nazi laws and legal positivism ("meaning here

11 Ibid, at 209. Hart, "Positivism", supra note 2; 74 G. Radbruch, "Gesetzliches Unrecht and Ubergesetzliches Recht" (1946) 1 Sud- Deutsche Juristen-Zeitung 105, cited in Hart, "Positivism", supra note 2 at 617. the insistence on the separation of law as it is from law as it ought to be"). In particular, Hart asserts that there is little to be gained for those who wish to encourage resistance to immoral laws by holding that otherwise valid laws lose their status as laws by virtue of a morally objectionable content. Rather, Hart suggests that one can maintain the sharp distinction between law and morals, and acknowledge that valid laws are laws even if they are morally objectionable, while maintaining that people should not blindly obey an immoral rule merely because that rule takes the form of a valid law. As Hart puts it, "Law is not morality; do not let it supplant morality."76

In a subsequent Harvard Law Review piece, Fuller responded to Hart's article,

77 and in particular, to his discussion of valid but immoral Nazi laws. In that piece Fuller argues that Hart is too quick to concede Nazi decrees should be considered valid laws. As Fuller puts it, "Hart seems to assume that the only difference between Nazi law and, say, English law is that the Nazis used their laws to achieve ends that are odious to an Englishman. This assumption is, I think seriously mistaken."78 The reason Fuller thinks that Hart's assumption is mistaken is that it pays no attention to what Fuller calls the 70 inner morality of law. That is to say, Hart's assumption about Nazi laws does not consider whether Nazi decrees comported with the principles that are constitutive of legality. According to Fuller, if Hart had paid closer attention to the inner morality of law, he would have seen that Nazi decrees were not only objectionable in terms of their content, but also in that they departed systematically from the principles of legality. For example, with regard to the principle that laws should not be retroactive, Fuller notes that the Nazis "took generous advantage of... retroactive statute[s] curing past irregularities." Similarly, with respect to publicizing laws, Fuller explains that in "the

Hart, "Positivism", supra note 2 at 617. 76 Ibid, at 618. 77 Fuller, "Positivism", supra note 2. 78 Ibid, at 650. 79 Ibid, at 644ff. Q A Ibid, at 650. Fuller provides as an example of such retroactive law the "Rohem Purge" in 1934. During this purge, Hitler ordered the execution of over seventy Nazi Party members. Days later, Cabinet ratified a statute giving retroactive validity to the actions undertaken. Q 1 Nazi regime there were repeated rumors of 'secret laws."' Moreover, because "published instructions to those administering the law could destroy the letter of any published law by imposing on it an outrageous interpretation, there was a sense in which the meaning of every law was 'secret.'"82 Finally, in relation to the principle that laws should be applied as they are announced, Fuller notes that the interpretative framework employed by officials in the Nazi regime - including perhaps most significantly, judges - was a very particular one. Laws were interpreted by virtue of their appropriate place in the authoritarian Nazi "legal" system: Nazi-dominated courts were always ready to disregard any statute, even those enacted by the Nazis themselves, if this suited their convenience or if they feared that a lawyer-like interpretation might incur displeasure from above.83

Tragically, the Nazi regime was highly effective at establishing a managerial order that projected social power onto individuals in violation of the principles of legality. This effectiveness implies that the projection of social power by a managerial order need not comply with the principles of legality, at least as they pertain to the external relations between the managerial order and those upon whom that order acts. Indeed, notwithstanding the effectiveness of Nazi projections of social power, systematic departures from the principles of legality under the Nazi regime were, according to Fuller, so serious as to render the very notion of Nazi "law" a contradiction in terms. To quote Fuller at length: To me there is nothing shocking in saying that a dictatorship which clothes itself with a tinsel of legal form can so far depart from the morality of order, from the inner morality of law itself, that it ceases to be a legal system. When a system calling itself law is predicated upon a general disregard by judges of the terms of the laws they purport to enforce, when this system habitually cures its legal irregularities, even the grossest, by retroactive statute, when it has only to resort to forays of terror in the streets, which no one dares challenge, in order to escape even those scant restraints imposed by the pretence of legality - when all these things have become true of a dictatorship, it is not hard for me, at least, to deny it the name of law.

Ibid, at 651. In particular, many of the killings in concentration camps are rumored to have been authorized by secret statutes. 82 Ibid, at 652. Ibid. 84 Ibid, at 660. For Fuller, then, the Nazi regime was not a legal order, in that it did not adhere to the principles of legality, and thereby provide individuals with stable guidelines for governing their self-directed interactions with one another. Rather, in the manner of a managerial order, the regime sought to maximize its social power over those upon whom it acted. Occasionally this managerial order exercised its power by deploying legal forms. On other occasions, it employed explicitly extra-legal means. Sometimes, it sought to convert its extra-legal exercises of power into apparently legal forms. Because, however, it was not committed to the project of law, but only to the successful exercise of social power, it adhered to the principles of legality only when it served its interest, only when it was expedient.

Here then, is a second and much more robust explanation for the difference between King Rex and either my hypothetical horticultural order or a hypothetical tyrant. The distinction is not the simple explanation, as outlined above, that King Rex is engaged in social power relations - i.e. King Rex necessarily draws upon the capacity for self- direction of his subjects, and thus he ought to follow the principles of legality because they will facilitate his ability to exercise his social power. This explanation cannot be complete because tyrants are also engaged in social power relations, and, as we have seen, the principles of legality are not necessary features of the effective exercise of social power in such circumstances. Instead, the key difference is that King Rex, as an aspiring lawgiver, wants to provide guideposts through which his subjects may successfully govern their interactions with one another. To do so, he must necessary adhere to the principles of legality, the principles which allow rules to serve as guideposts for human interaction. Tyrants, on the other hand, do not seek to facilitate human interaction, but to direct human beings for particular ends. They do not interact with human beings (or in my horticultural regime, plants), but act upon them. At times it may be expedient for tyrants to adhere to the principles of legality, but at times it will not be. It depends on the particular ends sought.

This more robust explanation, it must be admitted, does not directly undermine the positivist assertion that there is no necessary connection between morality and the principles of legality. That is to say, it does not establish that it is theoretically impossible for a tyrant to follow the principles of legality strictly, while enacting and enforcing deeply wicked rules. The principles of legality, as Hart put it, may be "compatible with very great iniquity." Or, as Fuller conceded, there is no "logical contradiction between in the notion of achieving...at least some kinds of evil... through means that respect all the demands of legality."

What the more robust explanation does establish, however, is that while the principles of legality are not a necessary feature of all forms of social order, they are a necessary feature of legal ordering. Where a legal order departs from these principles, we can therefore conclude that those in control of the legal order are trying to engage in a different type of social ordering, most likely managerial ordering, most likely, that is to say, a unilateral projection of social power.

3.2.6. Interactional Law & Strains on Legality

It will be recalled that I began my discussion of Fuller's interactional approach to law by saying that it was most unfortunate that, in his widely read King Rex allegory, Fuller chose to cast a monarch as his protagonist. It should now be readily apparent why this choice leaves his allegory open to misreading. Kings are typically viewed, particularly by American scholars, as engaging in unilateral projections of social power. When reading the King Rex allegory, one may thus understandably imagine that Fuller's

Hart, COL, supra note 14 at 202. See also, L. Fuller, "A Reply to Professors Cohen and Dworkin" (1965) 10 Villanova Law Review 655 [Fuller, "Reply"] at 664. It is worth noting, however, that it seems unlikely that a truly wicked regime would choose to strictly adhere to the principles of legality. Fuller, MOL, supra note 2 at 154: Does Hart mean merely that it is possible by stretching the imagination, to conceive of an evil monarch who pursues the most iniquitous ends but at all times preserves a genuine respect for the principles of legality? If so, the observation seems out of place in a book that aims at bringing "the concept of law" into closer relation with life. Does Hart mean to assert that history does in fact afford significant examples of regimes that have combined a faithful adherence to the internal morality of law with a brutal indifference to justice and human welfare? If so, one would have been grateful for examples about which some meaningful discussion might turn. 6 Fuller, "Positivism", supra note 85 at 664 principles of legality are meant merely as prudential guidelines that a King wishing to assert social power over others ought to follow. Given that Fuller's assertions about the connection between law and morality falter if the principles are merely a means of asserting effective social power over others, it is not surprising that Fuller is "generally thought to have had the worst of the debate [with positivists] about the rule of law."

Perhaps if Fuller had instead written an allegory about a hapless but well meaning newly elected president attempting unsuccessfully to build well-structured legal relations after a revolution, the allegory would have been better received. Better yet, Fuller could have told the allegory not from the perspective of the lawgiver, but from the perspective of individuals. Indeed, to my mind, Fuller's writing was most persuasive when he examined what law looks like to individuals trying their best to govern their interactions with one another with reference to legal rules that are far from ideal. If he had framed his allegory in either of these two manners,88 perhaps he could have sidestepped the unhelpful debate over whether the principles of legality are merely guidelines for effective unilateral projections of authority. Such an allegory might have led his critics to inquire into the role of the principles of legality on the supposition that lawgivers aim to provide guideposts to facilitate human interaction. Simultaneously, Fuller's critics who are unhappy with his interactional view of law might have tried to explicitly offer an alternative account of law, explaining how such an alternative account changes the significance of the principles of legality. As it stands, however, many of Fuller's critics simply fail to appreciate the link between the nature of Fuller's principles of legality and the way that one imagines what type of project law is.

In the end, what I want us to take away from my discussion of the link between Fuller's principles of legality and the type of aspirational project that he sees as being at the heart of legal ordering is that Fuller provides us with a series of hypotheses about what is likely to happen when law is deployed as an instrument of social control. When law is deployed in this manner, Fuller hypothesizes that we are likely to witness legal pathologies in the form of departures from the principles of legality. The inverse also

on Dyzenhaus, Hard Cases, supra, note 31 at 20. 88 Fuller hints at such an approach when he addresses de-colonization. Fuller, MOL, supra note 2 at 156. holds: when we notice systemic departures from the principles of legality, we are likely witnessing an attempt by constituted authorities to structure social relations in a manner other than through legal ordering.

As we shall now see, such departures from the principles of legality are a mainstay of contemporary border control law. If we examine border control law through the traditional positivist lens - law as a top-down exercise in social control - we might imagine that departures from the principles of legality in border control law represent poorly designed law, as understood in either moral or efficacy terms. Those of us who are concerned with these departures from legality might, in response, try to design legal and administrative processes that attempt to accomplish the aims of border control law without departing from the principles of legality. If, however, we adopt the Fullerian interactional approach we will see that the departures from the principles of legality in the border control setting are a result not of poorly designed processes, but rather what we saw in Chapter II to be the main aspiration of central strategies of contemporary border control: to deploy legal forms as one-way projections of authority, to act upon non- citizens rather than interacting with them.

3.3. Strains on Legality in Contemporary Border Control

Demonstrating that Fuller's principles of legality are systematically violated in the contemporary border control setting is, unfortunately, an altogether too easy task. A quick reminder of some of the more outrageous departures from the principles of legality in the border control setting will, therefore, be sufficient for present purposes.

3.3.1. The Existence of Rules

Let us begin with Fuller's first principle of legality, the requirement that cases be decided with reference to rales rather than on an ad hoc basis. A constant complaint by practitioners in the immigration and refugee field is that the primary determinant of successful immigration and refugee applications appears to be whom one happens to get as a decision-maker. I know all too well from my pro-bono work in the immigration and

See e.g. Hart, COL, supra note 14; Raz, supra note 30. refugee field how frustrating it is as an advocate to be unable to give one's clients an informed estimate about the likely results of their applications. To take just one example, consider applications for humanitarian and compassionate exceptions to regular Canadian immigration requirements.90 There is simply no way to estimate one's clients' chances of success in such applications.9 While you can look to the relevant legal and regulatory provisions, as well as a limited number of published cases, the "rules" are so vague (e.g. the bests interests of the child needs to be taken into account) that it would be more accurate simply to say that there are no rules at all. This problem is exacerbated by the fact that many immigration and refugee law decisions are both unwritten and unpublished. Moreover, there are serious impediments to having such decisions reviewed in court.94 The result is that case law provides relatively little guidance in fleshing out the vague rules.

Taken together, many lawyers and activists involved in refugee and immigration law thus contend that it is difficult to reliably work out the norms that actually animate

Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], s.25(l): The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. Indeed, one cannot make such estimates at a general level, as the government refuses to publish statistics regarding the overall success rates of humanitarian and compassionate applications. 92 Baker v. Canada, [1999] 2 S.C.R. 817. 93 J. Millbank, "Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia" (2002) 26 Melbourne U. L.R. 144. Leave from the Federal Court is required for judicial review. IRPA, supra note 90, s.72(l). Reasons do not need to be supplied - let alone published - for denials of leave. In only 10% of applications is leave granted. Immigration and Refugee Board, Formative Evaluation ofthelRB's Streamlining Initiative (Ottawa: IRB, 2005) at s.6.3. Moreover, in the event that leave is granted, a further appeal is only possible with the leave of the Federal Court judge who issues the original federal court decision. IRPA, supra note 90, s.74(4). administrative decisions in this area. Rather, decisions appear to be made on a largely ad hoc basis. For example, the Canadian Council for Refugees notes that [we] are often confused by decision-making which often does not appear to reflect a coherent pattern. Some cases that seem particularly compelling are refused, while others that seemed similar or less compelling are accepted. There appears to be inconsistency between regions and from decision-maker to decision-maker. 5

While these complaints regarding inconsistencies in immigration and refugee law decision-making are largely anecdotal, recent empirical data lends support to these critiques. A recent study based on information I obtained from the IRB through formal Access to Information procedures, reveals wide and unexplained variations in refugee claim grant rates across Table 1: Five Highest & Lowest Grant Rates in Principal Claimant Refugee Cases in 2006 for IRB Members Deciding at Least 50 Cases individual Canadian refugee Board Member Decisions Grant Rate adjudicators. As Table 1 Lowest Five HOUDE, ROGER 90 6,67 GHOSH,SUPARNA 119 9,24 shows, according the WONG, BING 68 11,76 FREILICH, MIRIAM 123 13,01 information provided by the WEIR, MARGARET 128 16,41 Subtotal 528 11,74 IRB, in 2006, whereas some Highest Five LECLERCQ, DOMINIQUE 80 91,25 KITCHENER, SUSAN 107 92,52 adjudicators accorded refugee GINSHERMAN, MARTIN 202 94,55 ETHIER, GILLES 138 95,65 status in nearly all the cases BEAUQUIER, JEAN-PIER 50 100 Subtotal 577 94,45 they heard, others denied Total at IRB in 2006 9984 54,08 refugee status in virtually all cases.

There are, of course, a number of factors that would quite properly lead to variations in refugee claim grant rates across individual adjudicators. For example, individual refugee adjudicators may specialize in cases that are pre-selected for eligibility

95 Canadian Council for Refugees, Issues for H&C round-table (27 March 2006) (online: http://www.web.ca/~ccr/H%26CMarch2006.litml) (accessed: 9 November 2006). 6 S. Rehaag, "Troubling Patterns in Canadian Refugee Adjudication" (forthcoming) 39 Ottawa Law Review [Rehaag, "Troubling Patterns"]. 97 E. Villemaire [IRB Director of Access to Information and Privacy], Personal Correspondence dated 21 June 2007, IRB File #: A-2007-00023/de (online: http://www.ccrweb.ca/documents/rehaagdata.htm (accessed: 29 Nov 2007) [IRB, ATIR]. 98 The methodology used to calculate the data discussed in this section is set out in Appendix A. for expedited procedures - meaning that these cases highly likely to be accepted." Similarly, refugee adjudicators may specialize in cases involving claimants from particular countries, or they may decide a large number of cases involving particular types of persecution. As a result, some suggest that large variations in refugee claim grant rates across individual adjudicators do not reflect inconsistent refugee adjudication, but rather are simply the result of patterns in case assignment.100

However, although patterns in case assignment do account for some of the variance in refugee claim grant rates, massive grant rate disparities remain even once these factors have been taken into account. As both Table 2 and Appendix B show, there are significant differences between individual adjudicators' actual grant rates and their expected grant rates adjusted to reflect the number of expedited claims, the country of origin of claimants, and the types of persecution involved in the subset of cases each adjudicator decided. In other words, while specialization may be a contributing factor to differential grant rates among Canadian refugee adjudicators, it does not appear to be a particularly significant one. Instead, outcomes in Canadian refugee cases appear to hinge - at least in part - on who happens to be assigned as a refugee adjudicator.1 '

For a description of the requirements for a claim to be expedited, see Immigration and Refugee Board, Fast Track Policy: Expedited Process, Policy no. 2005-02, effective March 14, 2005 (online: http://www.irb- cisr.gc.ca/en/references/policy/policies/exprocess_e.htm) (accessed: 9 July 2007). For an evaluation of the expedited procedure, see Immigration and Refugee Board, Formative Evaluation ofthelRB's Streamlining Initiative (Ottawa: IRB, 2005) (Project No. 520- 1035) at 6. 100 The IRB makes such an argument in a letter appended to the data they provided in response to my Access to Information Request. IRB, ATIR, supra note 97 at 3-4. See also, B. Chiquette [IRB Director of Communications], "Letter to the Editor of the Toronto Star dated August 30, 2007 concerning the Ideas page of August 29, 2007" (online: http://www.irb-cisr.gc.ca/en/media/news/2007/star070830_e.htm) (accessed: 8 Jan 2008), in response to S. Rehaag, "Adjudication lottery for refugees" in The Toronto Star (30 Aug 2007) A8. 1" For a more detailed analysis of these grant rate variations, see Rehaag, "Troubling Patterns", supra note 96. 179

Table 2: Ten Extreme Variations Between Actual and Expected Grant Rates Adjusted to Reflect Country of Origin and Claim Type in Principal Claimant Refugee Claims in 2006 for IRB Members Deciding at Least 50 Cases

Expected Grant Rate Variation Expected Grant Rate Board Member Decisions Grant Rate (Excl. Variation (Excl. Grant Rate (Excl. Expedited) Expedited) Expedited) Five Extreme WILSON, WILBERT 72 16,67 16,67 51,56 51,05 -34,89 -34,38 Negative RANDHAWA, SARWANJIT 84 19,05 19,05 55,09 49,95 -36,04 -30,91 Variations FAURE, MICHEL 59 22,03 22,03 55,62 52,14 -33,59 -30,1 HOUDE, ROGER 90 6,67 6,67 34,31 34,22 -27,64 -27,55 SANDHU,KEN 111 31,53 28,97 58,22 53,96 -26,69 -24,99 Five Extreme PELLETIER, JEAN-PAUL 81 82,72 82,72 58,86 56,98 23,85 25,73 Positive MOSS, JOEL 108 82,41 82,41 51,17 49,92 31,24 32,49 Variations ETHIER, GILLES 138 95,65 95,65 63 61,48 32,65 34,17 KITCHENER, SUSAN 107 92,52 92,52 59,88 58,29 32,64 34,24 LECLERCQ, DOMINIQUE 80 91,25 91,25 52,1 50,67 39,15 40,58 Total at IRB in 2006 9984 54,08 51,06 54,08 51,06 N/A N/A

Another recent large-scale empirical study has come to similar conclusions regarding refugee adjudication in the United States. Along with other data considered, the study examines 140,428 asylum applications decided in US Immigration Court from 1 0^ January 2000 to August 2004. Among the more pertinent findings are: • Female Immigration Court judges had significantly higher grant rates (53.8%) than male judges (37.3%);104 • Immigration Court judges who had never worked previously for Immigration and Naturalization Services (INS) or the Department of Homeland Security (DHS) had higher grant rates (48.2%) than those who had worked for these government agencies for 1-5 years (42.9%), for 6-10 years (40.2%) or for 11 or more years (31.3%); and, • Grant rates varied depending on whether Immigration Court judges had prior work experience with the military (37.4%), INS or DNS (38.9%), the government (excluding INS or DNS) (39.6%), private legal practice (46.3%o), academia (52.3%), and/or not-for-profit organizations (55.4%). 106

102 J. Ramji-Nogales, "Refugee Roulette: Disparities in Asylum Adjudication" (2007) 60 Stan. L. Rev. 295. 103 Ibid, at 394-395. 104 Ibid, at 342. 105 Ibid, at 347. 106 Ibid, at 345-346. After considering these and other statistical patterns in grant rates, the authors of the study conclude that, Whether an asylum applicant is able to live safely in the United States or is deported to a country in which he claims to fear persecution is very seriously influenced by a spin of the wheel; that is, by a clerk's random assignment of an applicant's case to one asylum officer rather than another, or one immigration judge rather than another.10

It would appear, then, that in both Canada and the United States outcomes in administrative determinations in the border control setting, at least in the specific context of refugee adjudication, appear to be largely ad hoc. That is to say, these determinations turn less on rules articulated in advance than on the whims - or perhaps the personal characteristics - of individual decision-makers. This, of course, constitutes a clear violation of Fuller's first principle of legality.

Before moving on to Fuller's second principle of legality, I would like to emphasize here that in suggesting that outcomes in administrative border control decisions reflect ad hoc rather than rule-based decision-making, the target of my critique is not administrative discretion per se. That is to say, I am not seeking to revive the critiques made by those such as Dicey,108 Hewart109 and Hayek110 who argue that administrative discretion should be eliminated because such discretion necessarily entails an infringement of the rule of law.111 Rather, I presume that administrative discretion can be exercised in a manner that is not ad hoc but that instead involves administrative decision-makers engaging meaningfully with norms that are supposed to animate - and justify - these decisions.112 In my view, the extreme variations in patterns of

Wl Ibid, at 378. A. Dicey, An Introduction to the Study of the Law of the Constitution, I0n ed (London: McMillan, 1995). 109 G. Hewart, The New Despotism (London: E. Benn, 1945). 1,0 F. Hayek, The Road to Serfdom (London: IEA, 2001). 1'' For a persuasive critique of such a view, see G. Cartier, Reconceiving Discretion: From Discretion as Power to Discretion as Dialogue (S.J.D. Thesis, University of Toronto, Faculty of Law, 2004) [unpublished]. 112 See generally, Ibid, at 313-323; D. Dyzenhaus, "Law as Justification: Etienne Mureinik's Conception of Legal Culture" (1998) 14 S.A.J.H.R. 11; D. Dyzenhaus (ed.), The Unity of Public Law (Oxford: Hart Publishing, 2004). For an application of this principle in the border control context, see Baker v. Canada, [1999] 2 S.C.R. 817 181 administrative border control decisions across individual decision-makers that I have documented indicate that decisions are not actually being made through meaningful engagement with the appropriate norms. Rather such decisions are - at least in some cases - being made with reference to extraneous factors, including the personal preferences of particular decision-makers.

3.3.2. Promulgation

As for the second principle of legality, promulgation, consider the rumours of secret procedures governing secret tribunals used in the Unite States' so called "extraordinary rendition" program.114 The US administration contends that the procedures employed in extraordinary rendition comply with US constitutional law and international law. Given the secrecy surrounding the procedures, however, these assurances are neither verifiable nor comforting.

Only somewhat less troubling is the Canadian government's regular refusal to publish, purportedly on national security grounds, details regarding border control

(quashing an immigration decision in which an immigration officer failed to exercise his discretion in a manner that meaningfully engaged with the norms that were meant to animate the particular decision-making process in question). For an excellent discussion of this decision, see D. Dyzenhaus & E. Fox-Decent, "Rethinking the Process/Substance Distinction: Baker v. Canada (2001) 51 U. Toronto L.J. 193. 1 1 ^ I do not dispute that decisions in a number of other areas of administrative law also likely reflect similar variations across individual decision-makers. For example, I suspect that an analysis of decisions made by particular civil servants regarding eligibility for social services might produce similar patterns. See e.g. L. Sossin, "Boldly Going Where No Law Has Gone Before: Call Centres, Intake Scripts, Database Fields, and Discretionary Justice in Social Assistance" (2004) 42 Osgoode Hall L.J. 363. In my view, however, the fact that there may be violations of legality in other areas of administrative decision-making law does little to undermine my assertion that border control administrative decision-making violates rule of law principles. Moreover, I hypothesize that administrative decision-making involving those who are in various ways excluded from full membership in society (i.e. not just on the basis of citizenship, but also on the basis of race, gender, socio-economic class, etc) are the most likely to reflect these patterns. 114 See generally, J. Mayer, "Outsourcing Torture: The Secret History of America's "Extraordinary Rendition" Program" in The New Yorker (14 Feb 2005). See also, D. Weissbrodt & A. Bergquist, "Extraordinary Rendition: A Human Rights Analysis" (2006) 19 Harv. Hum. Rts. J. 123. 115 Mayer, supra note 114 at 107. 182

administrative practices. This refusal is particularly common with regard to extra-

I 1 7 territorial border control activities, such as naval manoeuvres on the high seas. Similarly, the Canadian government refuses to provide details of the assistance they provide to airlines in establishing procedures airlines must follow when scrutinizing passenger travel documents. The result is that, what we saw in Chapter II to be some of the most important sites of Canadian border control, are sites where state and non-state actors effectively apply unpublished "rules". Finally, while not a matter of publicizing rules, but rather of making it impossible to publicly assess the fairness of the application of rules, consider the provisions regarding secret evidence in the Security Certificate procedures for non-citizens in Canada suspected of posing threats to national security.119

3.3.3. Non-Retroactivity

As to Fuller's third principle of legality, non-retroactivity, consider the Australian legislation authorizing its military forces to board the infamous MV Tampa and forcibly relocate the so-called "rescuees" to Nauru.1 The legislation received royal assent one month after these measures were taken. Such a retroactive statute is a true "monstrosity",

I 7 1 as Fuller would have put it. Less draconian, but still concerning, is that immigration applications in Canada are assessed against the rules in place at the time of assessment.122 Thus, someone who qualified to immigrate to Canada at the time of their application - and who paid the not insignificant administrative fees on that basis - may or may not ' See my discussion of Access to Information Requests below, Chapter IV, note 252. 1 1 7 See generally, Canadian Council for Refugees, Interdicting Refugees (1998) (online: http://www.web.net/ccr/Interd.pdf) (accessed: 30 Oct 2006). See above, Chapter II, notes 134-135. (and accompanying text). 1' IRPA, supra note 90, ss.76-87. See also, B. Berger, "Our evolving Judicature: Security Certificates, Detention Review, and the Federal Court" (2006) 39 U.B.C. L. Rev. 101; A. Macklin, "Borderline Security" in R. Daniels et al., eds., The Security of Freedom: Essays on Canada's Anti-Terrorism Bill (Toronto: U of T Press, 2001) 383. Border Protection (Validation and Enforcement Powers) Act, 2001 (Austl.); I. Khan, "Trading in Human Misery: A human rights perspective on the Tampa Incident" (2003) 12 Pac. Rim L. & Pol'y 9 at 12 (see especially nl9). See also my discussion of the MV Tampa Incident in Chapter II, Sections 2.4.1-2.4.7. Fuller, MOL, supra note 2 at 53 ("a retroactive law is truly a monstrosity"). I 79 Immigration and Refugee Protection Regulations, S.O.R./2002 [IRAP Regs], s.77 ("the requirements and criteria... must be met at the time an application for a permanent resident visa is made as well as at the time the visa is issued"). actually qualify, depending on the rules in places some years later when their application 193 is finally assessed.

3.3.4. Clarity

With respect to the fourth principle of legality, that rules should be clear or understandable to their addresses, one might cast the problem I identified above regarding excessively general rules instead as a problem of clarity. Given the

1 94 impossibility of interpreting laws without understanding their purposes, perhaps an explanation for the lack of clarity of laws in this area is that their purposes are difficult to discern. As we saw in Chapter II, laws in the border control framework sit at an awkward intersection between human rights principles and the desire of the state to assert absolute 1 9S control over their borders. As Audrey Macklin, a leading Canadian immigration law scholar and a former member of Canada's Immigration and Refugee Board, puts it: More than any other legal subject, the foreigner perches precariously on... borders, seeking entry qua human being into the normative terrain of human rights discourse, yet often denied shelter under the rights of citizenship precisely because she is not a citizen. Sometimes lucky, sometimes not. If there is a deeper, more coherent normative logic buttressing these borders and their operation, it eludes this author as much 1 9/i as it does most migrants.

From a Fullerian perspective, it is not surprising that, given the difficulty of discerning a normative logic behind the operation of border control norms, the rules in the border control context are difficult to clearly interpret or articulate.

3.3.5. Non-Contradiction

12 But see Kazi v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1212 (QL) at 1J30 (holding that applicants may be entitled to notice of changed criteria and an opportunity to provide additional information relevant to establishing that they meet the new criteria, because, "those who are governed by law must have knowledge of its rules before acting"). 12 See above, notes 55-65 (and accompanying text). 125 See above, Chapter II, notes 32-50 (and accompanying text). 126 A. Macklin, "The State of Law's Borders and the Law of States' Borders" in David Dyzenhaus, ed., The Unity of Public Law (Oxford: Hart Publishing, 2004) at 199. When considering Fuller's fifth principle of legality, that laws ought not to be contradictory, it is important to keep in mind that Fuller did not mean merely that laws ought not be logically contradictory.127 Rather, Fuller contended that laws ought not to be at cross-purposes.128 Laws ought not, to use the common law term, be "repugnant."129 Repugnant, however, is surely an apt way to describe what we saw in Chapter II to be one of the key planks of the asylum policy of all liberal affluent states: access to fair refugee determination processes for those who set foot on state territory is a constitutionally protected basic human right, yet states simultaneously take strenuous measures to prevent asylum seekers from reaching state territory.130 A more obvious example of laws that operate at cross-purposes is difficult to imagine. Indeed, it is on this basis of such repugnance that Justice Blackmun, in dissent, characterized as "extraordinary" the influential US Supreme Court decision upholding American interdiction practices with respect to Haitian asylum seekers on the high seas: What is extraordinary in this case is that the Executive, in disregard of the [1951 Refugee Convention], would take to the seas to intercept fleeing refugees and force them back to their persecutors — and that the Court would strain to sanction that conduct.

3.3.6. Possibility of Compliance

As to the sixth principle, that the law should not demand the impossible, the requirements for immigrating to Canada under the "point-system"132 are so far beyond the reach of most migrants as to render qualifying for immigration practically impossible. Perhaps more significantly, for asylum seekers faced with threats to their

Fuller discusses an example of a law that requires all car owners to install new license plates on January 1st, and a second law that makes it a crime to perform any labor on January 1st. There is nothing logically contradictory, Fuller tells us, in "making a man do something and then punishing him for it." Fuller, MOL, supra note 2 at 66. 128 Ibid, at 69. 129 Ibid. 130 See above, Chapter II, Section 2.3. 131 Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1993) (Blackmun J., dissenting) at 189. Immigration and Refugee Protection Regulations, SOR/2002-227, s. 209 [IRPA Regulations], ss.73-115. For a discussion of the point-system, and the reasons - both economic and symbolic - behind its focus on so-called "highly skilled" migrants see C. Dauvergne, "Evaluating Canada's New Immigration and Refugee Protection Act in Its Global Context" (2003) 41 Alberta L. Rev. 725 at 738-40. lives in their home countries, adhering to liberal states' visa requirements - designed to prevent asylum seekers from accessing the refugee determination system13 - would, in some cases, mean accepting persecution, torture, or even death. While neither the point system nor the visa requirements, strictly speaking, demand the impossible, requiring adherence to such rules would be more than merely "harsh" and "unfair", 5 and as such, would violate the spirit, if not the letter, of the sixth principle of legality.

3.3.7. Infrequent Changes

Regarding the seventh principle of legality, that laws should only be changed with reasonable frequency, it must be said that immigration legislation - at least in Canada - is not changed with undue frequency. However, it is significant that the bulk of Canadian border control law is found not in legislation but in regulations, in Program Manuals, and in the practices of state and non-state actors in extra-territorial fields. One of the advantages of locating border control law in such sites is to make border control law particularly easy - and quick - to change.

134 See above, Chapter II, Section 2.3. 135 Fuller, MOL, supra note 2 at 79: Before leaving the subject of laws commanding the impossible, two further observations need to be made. One is simply and obviously to the effect that no hard and fast line can be drawn between extreme difficulty and impossibility. A rule that asks somewhat too much can be harsh and unfair, but it need not contradict the basic purpose of a legal order, as does a rule that demands what is patently impossible. Between the two is an indeterminate area in which the internal and external moralities of law meet. Canada's current immigration legislation, which was passed in 2001, replaced the previous legislation that was passed in 1976. Immigration Act, R.S.C. 1985, c. 1-2 (repealed). The pace of legislative change in the United States, however, particularly post 9-11, is a different story. A. Balin, "Changes in Immigration Law and Practice After September 11: A practitioner's perspective" (2005) 30 Can.-U.S. L.J. 161 at 163: Regulatory and legal changes in the immigration context occurred at such a dizzying pace, even immigration lawyers found them difficult to navigate. With the proliferation of technical rules which, if violated, would render an individual potentially deportable, the detention of ever greater swaths of the immigrant communities present in the United States has become feasible. 13 See above, Chapter II, Section 2.3. In this regard it is worth noting that, at the time of writing, the current Canadian minority Conservative government is seeking to pass legislation - buried within the 2008 Budget bill - that would further enhance the ease with which government authorities can modify immigration requirements without making these changes through either legislative or regulatory amendments. One of the more notable changes included in this proposed legislation is that visa officers would be authorized to refuse to issue visas to applicants who meet all the legislative and regulatory requirements.139 Presumably such refusals of qualified visa applicants would be based upon policies established by the Minister of Citizenship and Immigration, policies which need not be articulated in legislation, regulation, or, indeed, promulgated in any form. Another major change in the legislation is to authorize the Minister to issue instructions for processing certain classes of immigration applications, including economic immigration applications made outside Canada. It is anticipated that these instructions - which again, are not subject to any formal promulgation requirement - would establish new categories for immigration applications, determine the order applications are processed, and place an upper limit on the number of applications processed for each category. Of course, it would be possible to achieve similar substantive objectives (i.e. establishing new types of visa applicants who will be refused a visa or establishing categories of immigrants whose applications will prioritized) the usual way: by directly amending the relevant provisions of immigration legislation or regulations. However, the underlying aim the proposed legislation, which significantly enhances the power of the Minister, appears to be to increase the ability of the government to make significant changes in border control law quickly and more frequently in response to changing circumstances - not to mention without being required to put these changes to Parliamentary debates and votes.141 The proposed legislation, therefore, represent a direct affront to Fuller's seventh principle of legality.

us Bill C-50, Budget Implementation Act, 2008, 2nd Sess., 39th Pari, 2008 (First reading, March 14,2008). 139 Ibid., s.116. l40/6/rf.,ss.ll8-119. For a critique of the proposed changes, see Canadian Council for Refugees, "10 reasons to be concerned about proposed amendments to Immigration and Refugee Protection Act (IRPA) in Bill C-50" (April 2008), online: http://www.ccrweb.ca/documents/c50tenreasons.htm (accessed: April 23, 2008). 3.3.8. Administered as Announced

Finally, Fuller's eighth principle of legality, that laws should be administered as they are announced, is also systematically violated in the border control sector. States regularly pass laws in this area that they know they are incapable of applying. Indeed, as a result of these laws, undocumented migrants now represent a significant proportion of the population - and an even more significant proportion of the economy - in affluent liberal states such as the United States,142 and, increasingly, Canada.143 The result, as Fuller would have predicted, is that an entire class of persons in all liberal states are now "outlaws", in the sense they must avoid coming into contact with state officials, lest they be discovered and jailed or deported.144 Similarly, as Fuller would have also predicted, for such individuals the law becomes a tool for blackmail and abuse at the hands of state officials and of private actors, such as immigration consultants,146 employers,147 landlords,1 and family members.149

See generally, D. Massey & K. Bartley, "The Changing Legal Status Distribution of Immigrants: A caution" (2005) 39 International Migration Review 469. 143 M. Jiminez, "Ottawa Eyes Amnesty Plan for 10,000 Illegal Workers" in The Globe & Mail (11 September 2004) Al 1 ("At least 10,000 undocumented drywallers, carpenters, house framers, painters and carpenters are working in the Greater Toronto Area alone"). The Department of Citizenship and Immigration Canada estimates that there is anywhere from 100,000 to 300,000 undocumented migrants in Canada. Citizenship and Immigration Canada, Canada's Immigration Policies — Misperception vs. Reality (online: http://www.cic.gc.ca/english/facts-myths/united-states.html) (accessed: 9 November 2006). G. Neuman, "Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine" (1995) 42 U.C.L.A. L. Rev. 1425. 1 O. Moore, "Refugee board member suspended over sex allegations" in The Globe & Mail (3 October 2006) A7 ("A member of the Immigration and Refugee Board of Canada has been suspended after a woman accused him of trying to trade sex for a favourable ruling"). 146 M. Jimenez, "Immigration advisers' board shaken again" in The Globe & Mail (14 December 2005) A15 ("Over the years, there have been so many problems with unscrupulous [immigration] consultants that the RCMP in the Greater Toronto Area set up a unit devoted to investigating complaints about corrupt practitioners"). 1 See e.g. L. Nessel, "Undocumented Immigrants in the Workplace: The Fallacy of Labor Protection and the Need for Reform" (2001) 36 Harv. C.R.-C.L. L. Rev. 345. 1 L. Bosniak, "Human Rights, State Sovereignty and the Protection of Undocumented Migrants Under the International Migrant Workers Convention" (1991) 25 IntT Migration Rev. 737 at 747-8 ("undocumented migrants are... susceptible to avaricious In addition to this general problem of exclusion from legal protections, we have seen that, often, specific immigration and refugee administrative and quasi-judicial decisions hinge not on the substance of immigration and refugee laws, regulations, or policies, but rather on the identity of decision-makers. I characterized this state of affairs as a breach of Fuller's first principle of legality (i.e. that there must be rules), arguing that these decisions are made not with reference to rules, but rather on a largely ad hoc basis. However, one might instead characterize ad hoc decision-making as a breach of the requirement that rules be enforced as announced. Take, for example, decisions regarding the detention of non-citizens. Under Canadian immigration legislation, non-citizens who have breached immigration law provisions may be detained if: (1) they are unlikely to present themselves for further immigration or removal proceedings; (2) they pose a risk to the public; or, (3) they have not satisfactorily established their identity.151 However, a recent report of the Canadian Auditor General has found that actual detention decisions are made based not on these rules, but rather on extraneous factors: We expected that the [Canada Border Services] Agency would detain people according to its policies and standards, and that detention decisions would be made in a consistent and fair manner. In our last audit, we found that the number of beds available in its holding centres could determine whether or not an individual would be detained. In our current audit, we found that the detention policies provide substantial latitude in decision making... [Djetention decisions were not made consistently. One region with limited holding space was more likely to release individuals on terms and conditions, while another region with more available beds held individuals for similar reasons until review by the Immigration and Refugee Board.152

practices on the part of landlords and merchants; and they fear state authority, including authority that might provide them with assistance"). 149 M. Mendelson, "The Legal Production of Identities: A Narrative Analysis of Conversations with Battered Undocumented Women" (2004) 19 Berkeley Women's L.J. 138. 150 See above, Section 3.1.1. 151IRPA, supra note 90, s.55. 152 Sheila Fraser, Report of the Auditor General of Canada to the House of Commons: Detention and Removal of Individuals - Canada Border Services Agency (Ottawa: Auditor General of Canada, 2008) at 10-11. A further - and particularly flagrant - example of the violation of Fuller's eighth principle is the Canadian government's failure to implement the provisions in the existing immigration legislation that establish the Refugee Appeal Division of the Immigration and Refugee Board.153 These provisions provide refugee claimants (as well as the Minister) with the opportunity to appeal initial refugee determinations on their merits154 - a matter of deep significance considering variations in refugee claim grant rates discussed above.155 Unfortunately, Canada's current immigration legislation, however, contains a boilerplate provision stating that the legislation would take effect at a time, or at times, to be fixed by the executive. Ultimately, the executive declared only certain provisions of the legislation into effect.157 In particular, they "temporarily" delayed declaring into effect the provisions establishing the appeal mechanism.158 The executive has recently gone a step further, indicating that implementing the Refugee Appeal Division is entirely unnecessary, because the "current system is fully in accord with the Charter of Rights and Freedoms and international legal obligations, and remains fair and generous even without an appeal on merit."15 It is worth noting that the boilerplate provision in Canada's immigration legislation is replicated in one form or another in much Canadian legislation.

13JIRPA, supra note 90, ss.l 10-111. 154 Ibid., s.l 10(1) (" A person or the Minister may appeal.. .on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division"). The central difference between such an appeal and judicial review in Federal Court is that findings of fact maybe reconsidered in an appeal. 155 See above, Section 3.3.1. 156 IRPA, supra note 90, s.275 ("The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council"). 157 Sections 1 and 4 came into force on 6 December 2001. SI/2001-119. Sections 2, 3, 5 to 72, 74 to 109, 112 to 170, 172 to 193, 196 to 244 and 246 to 274 came into force on 28 June 2002. SI/2002-97. Citizenship and Immigration Canada, News Release, 20002/12 "Refugee Appeal Division Implementation Delayed" (29 April 2002) (online: http://www.cic.gc.ca/english/press/02/0212-pre.html) (accessed: 9 November 2006): "The Canadian refugee determination system is facing an unprecedented increase in refugee claims. The number of claims almost doubled over the last three years, with the most dramatic increase in 2001. Because of the pressures on the system, we are delaying the creation of the Refugee Appeal Division within the IRB and focusing first on current challenges, namely, implementing other aspects of the Act while reducing the inventory and processing times," said Minister Coderre. 159 Citizenship and Immigration Canada, Fact Sheet, "Refugee Appeal Division Fact Sheet" (November 18, 2005) (online: http://www.cic.gc.ca/english/refugees/rad- menu.html) (accessed: 9 November 2006). It would, therefore, appear that a great deal of Canadian legislation is subject to the executive's decision to selectively implement whichever particular provisions it chooses. A more direct attack on the principle that rules ought to be applied as they are announced is difficult to imagine.

3.3.9. Legal Fictions

Before moving on to discuss the implications of the systemic departures from the principles of legality in the border control context, I would like to address one final legal pathology that Fuller did not explicitly include when he set out his list of principles of legality. That legal pathology is the resort to legal fictions. As we saw in Chapter II, one of the central strategies in the border control policies of contemporary liberal affluent states is to deploy legal fictions to treat migrants as though they were intercepted outside the territory of the state where constitutional rights and due process norms are significantly relaxed.1 ° Fuller, whose first major publication was a study of legal fictions,1 ' would have characterized such a strategy as a legal pathology: The fiction represents the pathology of the law. When all goes well and established legal rules encompass neatly the social life they are intended to regulate, there is little occasion for fictions... Only in illness, we are told, does the body reveal its complexity. Only when legal reasoning falters and reaches out clumsily for help do we realize what a complex undertaking law is.

Surely, the legal fictions we examined in Chapter II are, in Fuller's terminology, examples of a deep "illness" in contemporary border control law.

3.4. Interactional Conceptions of Law & Border Control

We have seen, then, that Fuller's principles of legality are systematically violated in contemporary border control law. What lessons can we draw from interactional

lbU See above, Chapter II, Section 2.4.8. 161 L. Fuller, "Legal Fictions" (1930) 25 Illinois Law Review 363. Fuller's only prior publication was a ten-page article on property law published two years prior. L. Fuller, "Adverse Possession - Occupancy of Another Man's Land Under Mistake as to Location of a Boundary" (1928) 7 Oregon L.R. 329. 162 L. Fuller, Legal Fictions (Stanford: Stanford U.P., 1967) at viii-ix. conceptions of law when confronted with such regular departures from the principles of legality? In my view, there are two broad lessons. First, interactional conceptions of law suggest that where we notice systemic violations of the principles of legality, we are likely witnessing attempts to govern interactions through managerial rather than legal ordering. Secondly, and, in my view more importantly, interactional approaches to law provide us with a means to critique managerial forms of social ordering that are dressed up in legal forms. Let us consider each of these points in further detail.

3.4.1. Border Control as a Unilateral Projection of Power

Once we have determined that legal pathologies are widespread in the border control setting, the next step is to see whether Fuller's prediction holds. That is to say, we must investigate whether departures from legality in border control law are a result of attempts by state executives to govern by means of managerial rather than legal ordering. In attempting to determine whether border control law represents an interactional enterprise aspiring to develop guideposts for self-directed human behaviour (i.e. legal ordering), or whether it is more aptly understood as a unilateral projections of state power (i.e. managerial ordering), there are at least three ways in which to imagine that border control law operates in an interactional mode.

The first would be to think of border control law as aiming to facilitate interactions between citizens and non-citizens. That is to say, border control law sets out procedures that non-citizens can follow if they wish to visit, work in, or even ultimately join an existing community of citizens. Border control law also sets out procedures for citizens to follow if they wish to sponsor their family members for immigration. It provides guidelines for companies to follow in order to hire non-citizens. It articulates procedures through which to screen out potentially dangerous non-citizens, so that others may be welcomed. In some countries, such as Canada border control law even establishes processes through which refugees aboard in serious need of resettlement may be assisted, either by the government or by individuals, in traveling to and establishing themselves in a new host country. Because border control law does all these things, there is a sense in which it can accurately be understood as interactional. However, it is imperative to appreciate that the vast majority of non-citizens around the world do not qualify to participate in these interactions. Unless one is a relatively affluent would-be tourist, a wealthy business investor, a highly skilled foreign labourer, or an extremely well educated would-be immigrant, one simply cannot access the procedures purportedly facilitating interactions between citizens and non-citizens.163 Indeed, as we saw in Chapter II, border control law's primary efforts appear to be directed at keeping these large numbers of unwanted non-citizens at bay. Moreover, it was our concern with border control law as it applies to unwanted non-citizens that prompted our inquiry into border control to begin with. Remember the question posed by Joseph Carens with which we began: Perhaps borders and guards can be justified as a means of keeping out criminals, subversives or armed invaders. But most of the people trying to get in [to liberal states] are not like that. They are ordinary, peaceful people, seeking only the opportunity to build decent, secure lives for themselves and their families... What gives anyone the right to point guns at them?164

In the end, even if there is an interactional aspect to border control law, aiming to facilitate interactions between citizens and some non-citizens, there remains a large number of people "trying to get in" to liberal states for whom border control does not appear to operate in interactional terms.

A second way to attempt to understand border control along interactional lines would be to employ the same kind of reasoning that Fuller resorts to when discussing criminal law. This reasoning would run as follows. While border control law will appear to unwanted non-citizens as assertions of social control rather than as guideposts

I leave aside the tricky question regarding migrants who are brought to Canada to perform allegedly "low skilled" (and highly gendered) labor such as seasonal agricultural workers and live in caregivers. It is interesting, however, that programs designed to facilitate admission of such laborers maintain - at least for some time - a unilateral relation between the community of citizens and migrants. If such migrants breach the terms of their conditional admission to Canada (by working in fields other than those for which they secured admission, for example) they are deported. For an interesting discussion, see A. Macklin, "On the Inside Looking In: Foreign Domestic Workers in Canada", in Wenona Giles & Sedef Arat-Koc, eds., Maid in the Market: Women's Paid Domestic Labour (Toronto: Fernwood Press, 1994). 164 J. Carens, "Aliens and Citizens: The Case for Open Borders" (1987) 44 The Review of Politics 251 at 251. facilitating interaction, such law may in fact be aimed at channelling even more negative social interactions into comparatively acceptable forms. Given the existence of xenophobic sentiments in all societies - particularly in times of perceived economic crisis - the existence of border control law designed to keep out unwanted non-citizens may serve to keep citizens from resorting to self-help to expulse these same non-citizens. Just as one might imagine the legal prohibition against murder as aiming to prevent escalating blood feuds among the families' of those killed, border control may be designed to prevent vigilante border control activities. This suggestion is less outlandish than it might seem, as demonstrated by the emergence of vigilante border patrol organizations in the United States in the face of the unwillingness or inability of the government to reduce the flow of undocumented migrants crossing the US-Mexico border.1 Still, it is worth noting that the vigilantes claim that they are not opposed to immigration, but to illegal immigration}^ The problem, then, with the view of border control law as aiming to channel violent xenophobic interactions into less violent forms is that violence directed towards non-citizens is itself prefaced on the distinction between citizens and non- citizens. In contemporary pluralist societies, this is distinction must be understood as a product, not merely a cause of border control law.

A third, and in my view the most helpful way of thinking about border control law as involving an interactional process is to consider that it is a bounded interactional process. That is to say, border control aims simultaneously to facilitate interactions within a group (and, indeed, to define that group), and to act upon those outside the group. Border control law is, in other words, a site in which a group of people come together and decide on the way that they will deal with outsiders.

"'Minutemen' End Unofficial Border Patrol, but Plan to Return" in The New York Times (1 May 2005) Al. 166 "Marchers Protest Border Patrol Group" in The New York Times (24 July 2005) 122 ("William N. Norris, a coordinator for the [Minutemen's] New Mexico chapter... said the group's goal was not to stop immigration but to ensure that immigrants 'fill out the paperwork and sign the guest book at the gate'"). Such a view of border control fits comfortably with what we saw in Chapter II is the central norm of border control: plenary control over aliens as one of the defining features of state sovereignty.167 Recall that, as Vattel put it: One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests.

Or, as this same principles was reiterated recently by the Supreme Court of Canada, "[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada."169

A major advantage of this third understanding of border control law is that it can account for the strains on legality that pervade this area of law. Suppose that border control law operates as a mode of legal ordering, as between citizens, and as between citizens and some group of non-citizens. Such a supposition would explain why border control generally operates through legal forms. Because border control operates through legal forms, the principles of legality seem appropriate. However, suppose further that border control simultaneously operates as a mode of managerial ordering with respect to large numbers of unwanted non-citizens. Because the principles of legality are not a necessary feature of managerial ordering, state executives are tempted to depart from these principles when they are inexpedient. The result is predictable: strains on legality.

3.4.2. Interactional Conceptions of Law & the Boundaries of the Moral Community

The possibility that legal forms might be used to facilitate interaction within a group with the aim of allowing that group to act unilaterally upon outsiders, is of course, not unique to the border control setting. While Fuller never systematically examined the issue of border control law, he was nevertheless aware of the challenge that bounded

167 See above, Chapter II, notes 5-9 (and accompanying text). 168 E. Vattel, Law of Nations (Philadelphia: T. & J. W. Johnson, 1854) book 1, s.231. 6 Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at 46. interactions posed for his theory of law. Fuller, like the liberal thinkers whose work we examined in Chapter I, saw the problem as one of defining the bounds of the moral community: Who are embraced in the moral community, the community within which men owe duties to one another and can meaningfully share their aspirations? In plain and straightforward modern jargon the question is, Who shall count as a member of the in group?

Interestingly, unlike most contemporary political and legal scholars, Fuller rejected the two-step of liberal philosophy. That is to say, he did not accept that before engaging in a discussion about fair and just political and legal institutions, one needs a clearly defined bounded community. He did not, therefore, argue that boundaries around communities are amoral, pre-legal and pre-political social facts. Fuller explains why such a view cannot be correct as follows: Within a functioning community, held together by bonds of mutual interest, the task of drafting a moral code is not difficult. It is comparatively easy to discern in this situation certain rules of restrain and cooperation that are essential for satisfactory life within the community and for the success of the community as a whole. But this confidence in moral judgment is bought at a cost, for if there are no rational principles for determining who shall be included in the community, the internal code 171 itself rests on what appears to be an essentially arbitrary premise.

How then, according to Fuller, do we determine non-arbitrary boundaries for a moral community? Because of his view that relatively stable patterns of social interactions are required to give legal (and indeed moral) norms their meaning, Fuller shies away from the idea that all human beings form a single moral community. As Toope and Brunnee put it: Fuller [is not among the] proponents of an idealized world community. In part, this is because [of his] commitment to the relevance of culture in constructing identities and social structures. [For Fuller, structures arise in specific settings of time and place. Actors are also culturally specified, not the fungible units of universalized "interests."172

Fuller, MOL, supra note 2 at 181 (emphasis added). 1 Ibid, at 182. Brunnee & Toope, supra note 6 at 67. In the only passage in his published work that seriously takes on the themes of the bounds of the moral community, rather that resorting to a hypothetical single world community, Fuller draws on the parable of the Good Samaritan. Using this well-known parable, he suggests that we must constantly aim at expanding our moral communities wherever possible. It is worth citing the relevant passage at length: The... Old Testament includes the command: Thou shalt love thy neighbor as thyself. The New Testament tells of an encounter between a lawyer and Jesus that turned on this command. The lawyer, perceiving that the passage contained a point of difficulty, wished to test Jesus' powers of exegesis. He asked, "And who is my neighbor?" On this occasion, Jesus does not answer, "Your neighbor is everyone; you are bound to love all men everywhere, even your enemies. Instead he relates the parable of the Good Samaritan. A certain man had been struck down by thieves and left half dead. Two of his community brothers passed him by without offering aid. Then one of the despised Samaritans - definitely a member of the out group - bound up his wounds and took him into care. Jesus ends with the question: "Which now of these three, thinkest thou, was neighbor unto him that fell among the thieves?" The meaning of this parable is, I believe, not that we should include everyone in the moral community, but that we should aspire to enlarge that community at every opportunity.173

Notice the way that Fuller escapes the two-step of liberal philosophy here. The boundaries of the community are not the only determinant of whether one is required to respond to the needs of others; rather, the decision as to whether one responds to the needs of others creates the boundaries of the community. For Fuller, how we respond (or fail to respond) to others literally defines "us": In the Talmud there is a passage that reads, "If I am not for myself, who shall be for me? If I am for myself alone, what am I?" If we put this in the plural we have, "If we are not for ourselves, who shall be for us? If we are for ourselves alone, what are we?"17

Or again, [communication [with others] is something more than a means of staying alive. It is a way of being alive.... How and when we accomplish communication with one another can expand or contract the boundaries of life itself.175

Fuller, MOL, supra note 2 at 182-3 (emphasis added). Ibid, at 183. Ibid, at 186. In fact, Fuller goes so far as to say that expanding our capacity to communicate with and respond to others across community boundaries is the central principle of "Natural Law": If I were asked, then, to discern one central indisputable principle of what may be called substantive natural law - Natural Law with capital letters - I would find it in the injunction: Open up, maintain, and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel and desire... And if men will listen, that voice... can be heard across the boundaries and through the barriers that now separate men from one another.

Now, Fuller's remarks on this subject - which are found only in the last few pages of The Morality of Law - hardly constitute a systemic account of how we might go about thinking about the boundaries of our communities. We will return to this point in my final Chapter, but it is worth noting that Fuller's remarks appear surprisingly similar to an approach we encountered in Chapter I that also partly rejected the two-step of liberal philosophy: Seyla Benhabib's contention that boundaries around communities can - and should - be incrementally expanded through democratic deliberations about justice towards "others", who, in contemporary pluralist societies are encountered in day to day interactions with citizens because, in such societies, "the other is not elsewhere".177

3.5. Conclusion

In this Chapter we encountered Lon Fuller's theory of interactional law, as well as his view that where law departs systematically from what he calls the principles of legality, it is likely a result of a constituted authority employing legal forms as one-way projections of authority. We have also seen that such systemic departures from the principles of legality are, in fact, pervasive in the border control context. One possible explanation for these strains on legality is that border control is directed towards two ends simultaneously. On the one hand, border control aims to facilitate interaction between citizens, as well as between citizens and certain groups of non-citizens. On the other mIbid. at 186. 177 S. Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge U.P., 2004) at 89. See also above, Chapter I, note 151 (and accompanying text). hand, it aims to define and act upon other groups of unwanted non-citizens, most notably undocumented migrants and asylum seekers. In other words, border control law operates as both legal ordering and managerial ordering simultaneously. It is thus not surprising that border control law takes a legal form (because of the interactional component), but frequently departs from the principles of legality (because of the unilateral component). After all, as we have seen, the principles of legality are not a necessary feature of- and in some circumstances may be an impediment to - effective assertions of managerial power over others. The major implication of this Chapter, then, is that systemic departures from the principles of legality in the border control setting are not necessarily a product of poorly designed legal and administrative processes. Rather, the problem may simply be that the aspiration of border control is to facilitate interaction within one group (legal ordering) in order to structure that group's relation with another group along unilateral lines (managerial ordering).

One way of thinking about the problem of bounded interactions within an interactional theory of law, one way, that is to say, of dealing with the possibility that insiders may use law to act unilaterally upon outsiders, is to insist, as per both Fuller's scattered remarks on the subject and Benhabib's more developed view, that the distinction between insiders and outsiders is not prior to social interactions. One does not, on this view, have obligations towards others merely by virtue of their status as an insider in a particular group. Rather, a person is an insider in a particular group by virtue of whether the group responds to obligations that arise in interaction with them. Such a view, however, is necessarily prefaced upon openness to interactions with others, an openness that Lon Fuller characterizes as the "central indisputable principle of what may

11R be called substantive natural law."

This Chapter, then, directs us towards a difficult question. What can we do when legal forms aim at creating and shoring up barriers to interactions, aim, that is to say, at ensuring that encounters between citizens and certain non-citizens are structured unilaterally? What do we do, to put this same question in other terms, when legal forms

78 Ibid. are deployed in order to accomplish managerial direction in a manner that violates both the principles of legality and the central principle of substantive natural law?

It is not a sufficient answer to this question to say that we should work towards a world without borders, a world where groups stop attempting to act upon other groups. The problem with such an approach is that, as we saw in Chapter II, unilateral action

1 7Q upon outsiders is generally imagined as a constitutive feature of state sovereignty. The attempt to structure relations with non-citizens unilaterally is simply not going away any time soon. Moreover, one cannot expect courts - the purported guardians of the legal order - to consistently apply the principles of legality to rein managerial control in the border control context, because courts, no less than state executives, are committed to state sovereignty.

In the next Chapter, I will attempt to offer an alternative approach. This approach will seek to capitalize on the possibility, explored by legal pluralists, that the state is not the only legal order on any given territory. Non-state legal orders may be committed to the principles of legality without being strongly committed to state sovereignty. If the state legal order is unable to provide stable guidelines for human behaviour in the border control setting because of its commitments to unilateral assertions of power over non- citizens - if, in other words, the state legal order departs systemically from the principles of legality - perhaps other legal orders may step in and provide viable governing frameworks. Perhaps, that is to say, other legal orders might offer us a way of thinking about border control in an interactional, rather than unilateral mode. Paying attention to - and indeed encouraging - the efforts of such legal orders can, I will now argue, serve to enhance the integrity of interactions across what are currently understood to be unilaterally projected boundaries.

See above, Chapter II, notes 5-9 (and accompanying text).

CHAPTER IV: RESISTING EXCEPTIONAL BORDER CONTROL LAW

Sanctuary workers produce... an alternative legal reality, part critique and part replication of the official enforcement of asylum laws — intertwining power and resistance.

- B. Bezdek1

4.1. Introduction

In the last Chapter, we examined what I view to be troubling about contemporary border control practices from the perspective of legal theory. In particular, I suggested that these practices involve the use of legal instruments as one-way projections of social power. In other words, contemporary border control practices seek to maintain a relation between the state and migrants that emphasizes the state's ability to act unilaterally upon migrants and while minimizing the obligations of the state to respond to - or to interact with - migrants. Drawing on Lon Fuller's interactional theory of law, however, I argued that legal relations cannot be structured in purely unilateral terms without producing visible legal pathologies or strains on legality. I then demonstrated that such pathologies are, in fact, present in the border control setting.

The significance of establishing that border control law operates as a unilateral projection of state power is that Fullerian scholars have identified strategies that are available to counteract the strains on legality that emerge when unilateral assertions of state power take legal forms. As we shall now see, one particularly promising strategy relies on legal pluralism, the idea that in any given site there may be multiple intersecting legal orders.2 Because of the simultaneous presence of multiple legal orders in any given setting, where strains on legality in one legal order produce especially harsh

B. Bezdek, "Religious Outlaws: Narratives of legality and the politics of citizen interpretations" (1995) 62 Tenn. L. Rev. 899 at 942-943. See e.g. B. de Sousa Santos, Toward A New Legal Common Sense, 2"' ed. (London: Butterworths, 2002) [Santos, Common Sense] at 89 ("Legal pluralism concerns the idea that more than one legal system operate in a single political unit").

201 consequences, other legal orders may step in to provide viable governing frameworks. As I will now show, contemporary Canadian and US church sanctuary practices - whereby non-citizens seek the assistance of religious institutions to avoid deportation resulting from state-based border control procedures that violate principles of legality - can be understood as successful bids to resort to such legal pluralist strategies.

Before turning to my examination of sanctuary practices, however, I would like to briefly address a terminological matter: my use of the term "legal order". Generally speaking, legal pluralists argue that one encounters a legal order wherever one witnesses relatively autonomous social fields that produce (and, arguably, enforce) rules and

•5 processes governing social interactions. Thus, legal pluralists may look beyond state law to discover legal orders in extra-state sites such as indigenous communities, families, factories, universities, sports leagues, neighbourhoods, and so on.4 Legal pluralists, however, have long been criticised for an inability to clearly articulate what distinguishes legal orders from other forms of normative ordering or social regulation. For example, Brian Tamanaha, after noting that some legal pluralists go so far as to locate law in "day- to-day human encounters such as interacting with strangers on a public street, waiting in lines, and communicating with subordinates or superiors,"6 suggests that Nothing prohibits legal pluralists from viewing law in this extraordinarily expansive, idiosyncratic way, although common sense protests against it. When understood in these terms, just about every form of norm governed social interaction is law. Hence we are swimming - or drowning - in legal pluralism.7

See generally, J. Griffiths, "What is Legal Pluralism?" (1986) 24 J. of Legal Pluralism 1. For a more contemporary - and to my mind, more sophisticated - understanding of legal pluralism, see R. Macdonald & M. Kleinhans, "What is Critical Legal Pluralism?" (1997) 12 Canadian J. of L. & Soc'y 25. See e.g. R. Macdonald, Lessons of Everyday Law (Montreal: McGill-Queen's University Press, 2002). See e.g. G. Teubner, "The Two Faces of Janus: Rethinking Legal Pluralism" (1992) 13 Cardozo L. Rev. 1443; S. Merry, "Legal Pluralism," (1988) 22 Law & Soc'y. Rev. 869. 6 P. Berman, "From International Law to Law and Globalization" (2005) 43 Colum. J. Transnational L. 485 at 505, cited in B. Tamanaha, "Understanding Legal Pluralism: Past to Present, Local to Global" (forthcoming) Sydney Law Review (available online: http://papers.ssm.com/sol3/papers.cfm?abstract_id=1010105) (accessed: 10 June 2008) [Tamanaha, "Legal Pluralism"] at 28. 7 Tamanaha, "Legal Pluralism" supra note 6 at 28. Boaventura de Sousa Santos offers what is, to my mind, a persuasive response to these critiques: Why should... competing or complementary forms of social ordering - from informal dispute-processing mechanisms implemented by neighbourhood associations to commercial practices, codes enforced by non-state armed groups, and so on - be designated as law and not rather as 'rule systems', 'private governments', and so on? Posed in these terms, this question can only be answered by another question: Why not? Why should the law be different from the case of... medicine?... [It] is generally accepted that, side by side with the official professionalized, pharmochemical, allopathic medicine, other forms of medicine circulate in society: traditional, herbal, community-based, magical, non-western medicines. Why should the designation of medicine be restricted to the first type of medicine...?

It is important to note that, for Santos, this response has particular force for those of us with socio-legal training who wish to participate in emancipatory legal projects. As Santos puts it, A conception of socio-legal fields operating in multilayered time-spaces is likely to expand the concept of law and, consequently, the concept of politics. It will be thus suited to uncover social relations of power beyond the limits drawn by conventional liberal theory and, accordingly, to uncover unsuspected sources of oppression or of emancipation through law, thereby enlarging the field and radicalizing the content of the democratization process.

Now, in my view, not much turns on the actual label - whether legal orders, normative orders, regulative orders, or so on - that one applies to extra-state institutions that produce rules and processes that govern social interactions. Thus I invite readers who are uncomfortable with legal pluralism to substitute some other term for what I refer to as "legal orders" throughout this Chapter.' What is important, for my purposes, is not the label applied, but rather an openness to the possibility that jurists (and indeed, liberal political philosophers) might have something to learn from the complex disputes over

Santos, Common Sense, supra note 2 at 91. Ibid, at 98. It is worth emphasizing here, that Santos does not mean to suggest that extra-state legal orders are, in themselves, necessarily emancipatory or progressive. Indeed, one of his major preoccupations is to develop appropriate state-based responses to what he terms "despotic" non-state legal orders. Ibid. 10 One possibility that I would urge upon such readers because of its compatibility with the rest of the argument presented in this dissertation would be to use Michael Walzer's term "social spheres", which I introduced in Chapter I. See Chapter I, Section 1.3.5. 204

state-based border control rules and processes that occur in sites that I am calling extra- state "legal orders", sites which engage with state-based law, while drawing on well- developed legal (or normative) traditions of their own.

Let us begin our examination of church sanctuary practices, then, by taking a closer look at the traditions that partially constitute these practices.

4.2. The History of Religious Asylum

Contemporary church sanctuary practices involving non-citizens in Canada and the United States flow out of a long history of religious asylum. In providing a brief overview of this history I will focus exclusively on the Judeo-Christian origins of sanctuary because the vast majority of contemporary Canadian and US sanctuary incidents that are the subject of this chapter occur in Christian denominations.11 It is worth noting, however, that religious asylum finds expressions in several other major religious traditions. Indeed, some commentators trace the origins of international refugee law to a convergence of asylum practices across religious traditions.

4.2.1. Biblical Sources for Religious Asylum

Within the Christian tradition, religious asylum is frequently traced back to Biblical origins. Several Biblical passages note that God commanded Moses to establish cities of refuge: [Y]e shall appoint... cities of refuge...; that the slayer may flee thither, which killeth any person at unawares. And they shall be unto you cities for refuge from the avenger; that the manslayer die not, until he stand before the congregation in judgment....

And if... [the slayer] is a murderer: the murderer shall surely be put to death. The revenger of blood himself shall slay the murderer... when he meeteth him...

See below, notes 147-150 (and accompanying text). 12 For example, for fascinating histories of sanctuary in Islamic law as a foundation for refugee protection in Islamic states, see Ghassan Maarouf Arnaout, Asylum in the Arab- Islamic Tradition (Geneva: UNHCR, 1987); Khadija Elmadmad, Asile et refugies dans les pays afro-arabes (Casablanca, Maroc: Editions EDDIF, c2002). 205

But if [the slayer] thrust him suddenly without enmity, or have cast upon him any thing without laying of wait...and was not his enemy, neither sought his harm: Then the congregation shall judge between the slayer and the revenger of blood... and the congregation shall restore [the slayer] to the city of his refuge, whither he was fled: and he shall abide in it...

But if the slayer shall at any time come without the border of the city of his refuge, whither he was fled; And the revenger of blood find him without the borders of the city of his refuge, and the revenger of blood kill the slayer; he shall not be guilty of blood: Because he should have remained in the city of his refuge.

In other words, in cities of refuge those guilty of what we would today call manslaughter could avoid retribution - i.e. death at the hands of the victims' families. To obtain protection from retribution, however, they had to persuade authorities in the city that the killing had, in fact, been unintentional, and thus that right to retribution should be suspended. Where they succeeded in so doing, those seeking refuge enjoyed protection only so long as they remained within the city walls.1

In addition to references to cities of refuge, the Bible also contains several passages mandating hospitality towards strangers that are relevant to the development of contemporary church sanctuary practices involving non-citizens. For example, And if a stranger sojourn with thee in your land, ye shall not vex him. But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land ofEgypt.15

This religious exhortation was later echoed in the New Testament, when Jesus called upon his followers to extend hospitality to strangers in need:

Numbers 35:9-27'. See also, Deuteronomy 4:41-43; Joshua 20:2; Exodus 21:13. 14 Jorge Cairo, "Sanctuary: The Resurgence of an Age-Old Right or a Dangerous Misinterpretation of an Abandoned Ancient Privilege?" (1986) 54 U. Cin. L. Rev. 747 at 749-751; Mathew Price, "Politics or Humanitarianism? Recovering the Political Roots of Asylum" (2004) 19 Geo. Immigr. L.J. 277 at 284, n31. 15 Leviticus 19:33-34. See also, Exodus 22:21. For interesting discussions of the obligation of hospitality as a fundamental precept in Christian ethics, and an important practice for Christian identity, see Christine Pohl, Making Room: Recovering Hospitality as a Christian Tradition (Grand Rapids, Mich.: W.B. Eerdmans, 1999); Luke Bretherton, Hospitality as holiness : Christian witness amid moral diversity (Aldershot, England: Ashgate, 2006). When the Son of Man comes in His glory... the King will say to those on His right hand, 'Come, you blessed of My Father, inherit the kingdom prepared for you from the foundation of the world: for I was a stranger and you took Me in...'

Then the righteous will answer Him, saying, 'Lord, when did we see... You a stranger and take You in...? ... And the King will answer and say to them, 'Assuredly, I say to you, inasmuch as you did it to one of the least of these My brethren, you did it to Me.'16

As we shall see, Christian religious asylum draws heavily on a particular combination of the notion that there are exceptional spaces - like cities of refuge - where harsh applications of secular law can be suspended on the one hand, and the obligation to respond to needy strangers on the other hand.

4.2.2. Religious Asylum in Ancient Greece

While Biblical sources regarding cities of asylum and the general obligation of hospitality towards needy strangers are frequently cited as establishing the normative background for Christian religious asylum practices, the original institutional authority for these practices finds its roots in Ancient Greece. The term 'asylum' comes from the

1 o Greek word, asylia (aovXia), which means 'inviolable'. Asylia, in its legal manifestation, involved a prohibition against violence committed by secular authorities within sacred sites, especially temples. Kent Rigsby, a classics scholar who has studied asylia closely, describes the prohibition on violence in the following terms: "anyone who entered a temple...was to be immune from violence, for he had put himself at the discretion of the god [of the temple] rather than of man." It is thus evident that the prohibition aimed not merely to restrict violence within sacred sites, but also to ensure that the sanctity of temples would not be subject to the incursion of secular authorities. As Rigsby puts it, "[t]he legal immunity of a Greek temple is a negative fact, the absence of secular jurisdiction."

16 Mathew 25:31-40 See above, note 15. 18 "Asylum", The Concise Oxford Dictionary of English Etymology (Oxford: Oxford University Press, 1996). 19 Kent Rigsby, Asylia: Territorial Inviolability in the Hellenistic World (Vancouver: UBC Press, 1996). 20 Ibid, at 9. In principle, fugitives from Ancient Greek secular authorities could resort to asylia to obtain immunity from secular punishment by remaining physically within a 9 1 temple and thereby outside the jurisdiction of the secular authorities. This immunity, however, was significantly circumscribed by the ability of secular authorities to lay siege 99 to temples, thereby starving fugitives out to face secular legal sanction. Moreover, fugitives who successfully reached temples were not automatically ensured of asylia. While they were immune to the jurisdiction of secular authorities within the temples, they nonetheless remained subject to sacred authorities. More precisely, a person seeking asylia "had to convince the god's priest that he deserved protection, and if he failed to do so, he could be turned away."23 Asylia did not, therefore, simply offer anyone who wished it an escape from secular legal sanctions. Rather, it provided fugitives with an opportunity to present an argument about why the legal consequences they faced within the secular jurisdiction ought to be suspended by virtue of a norm that was of importance within the sacred realm. Interestingly, those who were most successful in obtaining asylia in Greek temples were not typical criminal fugitives, but rather defeated enemy soldiers who would otherwise have been killed.24 Recall, however, that it was open to the secular authorities to starve such soldiers out of the temples. The fact that the authorities regularly chose not to exercise this option can thus be taken as a sign of acquiescence, perhaps motivated by the possibility of future negotiated exchanges of captured soldiers. Another group that successfully resorted to asylia were fugitives from foreign city-states who were the subject of extradition requests, but who the host city did not wish to extradite.25 Rather than provoking political conflicts by refusing requests for extradition, host cities encouraged such fugitives to take asylia in local temples, allowing the secular authorities to assert that the fugitives were beyond their jurisdiction and thus could not be

Cairo, supra note 14 at 751. '" Ibid. Price, supra note 14 at 284. 4 Cairo, supra note 14 at 751. 5 Price, supra note 14 at 285. extradited. What both these examples indicate is that in Ancient Greek times, religious asylum was not merely a jurisdictional conflict between two distinct legal orders - secular and sacred - but rather, a complex and frequently mutually beneficial interaction between two legal orders.

4.2.3. Religious Asylum in Roman Law

The tradition of religious asylum survived the conquest of the Greeks by the Romans. In early Roman law, however, religious asylum in temples was much more limited than was the case in Ancient Greece. In particular, Roman religious asylum afforded only temporary respite from violent retribution for those accused of crimes, until 97 such time as an official secular inquisition could be held. The most frequent users of early Roman religious asylum were fugitive slaves. Fugitive slaves who reached a temple had the right request a hearing from secular authorities, during which they could assert that their masters had exceeded their personal jurisdiction by imposing "brutality or starvation or intolerable wrongdoing."28 The only remedy available, in such instances, on however, was for secular authorities to order masters to sell their slaves to new masters.

Religious asylum under Roman law significantly expanded with the rise of Christianity. Beginning in 313CE, when Christianity received official appropriation by Constantine's Edict of Toleration, Christian churches became sites of refuge where slaves, criminals, and even debtors sought the intercession of religious officials to help secure leniency from the harsh application of Roman laws by secular officials. By 392CE, this practice had apparently become so widespread, and secular interference in these sites so difficult, that religious asylum was implicitly recognized in the Theodosian Code. This implicit recognition took the form of a prohibition against church asylum for a particular class of fugitives: those seeking to evade tax debts. According to Jan Hallebeek, while this provision "by no means grants a right of asylum, it could be

26 Ibid, at 285-6. 77 ~ Carro, supra note 14 at 751. 28 Price, supra note 14 at 289. 29 Ibid. 30 Ibid, at 290; Carro, supra note 14 at 752. 31 Code Theod. 9.45.1. understood to acknowledge the existence of a right of asylum for categories other than debtors of the Treasury." This phenomenon, whereby Roman law, while not explicitly acknowledging Christian church asylum, nonetheless sought to impose restrictions on who could benefit from it, continued throughout the final years of the 4th century.33 In 397CE, for example, Jews seeking to avoid debts were excluded from eligibility for sanctuary,34 as were certain classes of persons who neglected their public duties.35

The first explicit acknowledgement in Roman law of the positive right of churches to offer asylum did not come until 414CE - and then only if the codifiers of the Justinian Code can be believed. This explicit acknowledgment took the form of a prohibition against the removal by secular authorities of particular classes of fugitives who had taken sanctuary in churches: For true and pious reasons, We direct that no one shall be permitted to remove from the holy churches persons who take refuge there, with the understanding that if anyone attempts to violate this law, he shall be considered guilty of the crime of treason.3

In 43ICE, this prohibition was extended to cover not only forcible removal from physical churches, but also from churchyards, church residences, church courts, and even church cemeteries. When the Justinian Code was enacted in 534CE, these prohibitions on forcibly removing fugitives from church asylum were retained. However, in subsequent

on Jan Hallebeek, "Church asylum in late Antiquity: Concession by the Emperor or competence of the Church?" in E.C. Coppens, ed, Secundum Jus: Opstellen aangeboden aanprof. mr. P.L. Neve [Rechtshistorische reeks van het Gerard Noodt Instituut, 49], Nijmegen 2004, 163-182 (online: http://dare.ubvu.vu.n1/bitstream/l 871/9006/1 /church+asylum.pdf) (accessed: 4 February 2007) at 167. 33 Ibid, at 167-171. 34 Code Theod. 9.45.2 35 Code Theod. 9.45.3. 36 Hallebeek suggests that the codifiers of the Justinian Code interpolated this provision, and that the first explicit recognition in Roman law for the right of churches to grant asylum did not in fact come until 43ICE. Hallebeek, supra note 32 at 172. Code Just. 1.12.2. According to the compilers, this provision was established by Emperors Honorius and Theodosius in 414CE. 38 Code Just. 1.12.3. 39 Code Just. 1.12.1-1.12.5. 210

years the classes of eligible fugitives were restricted to exclude murders, adulterers, abductors, debtors of the Treasury, infidels, heretics and Jews.

Although church asylum ultimately received official recognition in the Roman legal system, it would be a mistake to assume that religious asylum was a privilege that secular authorities accorded to the Church under secular law, rather than as a practice finding its legal foundation in ecclesiastic law. One of the earliest ecclesiastic pronouncements regarding church asylum is found in Canon 8 of the Council ofSardica, held in 343CE. Canon 8 required the Church to intercede on behalf of those who requested assistance in the face of alleged injustice in the secular Roman legal system.42 In 44ICE, Canon 5 of the First Council of Orange formally linked this practice of intercession to a right to asylum within church buildings. According to this Canon, fugitives had the right not only to the intercession of religious authorities with secular authorities, but also to immunity from the application of secular law while religious authorities interceded on their behalf, so long as they remained physically within a Church building.43 This notion that church asylum involved both intercession and the physical inviolability of Church buildings to secular interference, was repeatedly reaffirmed in later Canon law, including in Canon 8 of the Council ofLerida in 546CE.44 Interestingly, the early ecclesiastic pronouncements on the subject - especially Canon 1 of the Council of Orleans in 51 ICE - emphasize that the principle of the inviolability of church buildings conformed to both canon law and secular Roman law.45 Thus, the question of which body of law ought to prevail in the event of a conflict was not addressed.

This lack of attention to conflicts between secular and religious law was possible because, initially, the interests of secular and religious authorities with respect to church asylum, while distinct, remained largely compatible. For secular authorities, church asylum represented a mechanism to reduce the injustice - and inevitable resistance to that

40 Hallebeek, supra note 32 at 173-174. 41 Ibid, at 164. 42 Ibid, at 165-166. Ibid, at 174. See also, Decretum Gratiani D.87 c.6. Hallebeek, supra note 32 at 175. 211

injustice - that resulted from a harsh, imperfect, and inflexible secular legal system.46 Religious officials, on the other hand, while surely not disinterested in the question of injustice, were at first primarily concerned with how church asylum could ensure that those subject to Roman law sanctions had sufficient opportunities for repentance, particularly for those subject to the death penalty.47 Initially, both the secular and ecclesiastic interests could be met through the intercession of religious authorities in the application of secular law in particular instances, and through a mechanism - the inviolability of the physical church - that temporarily suspended the application of secular law in order to accord sufficient time to allow such intercessions to proceed.

4.2.4. Religious Asylum in the Medieval & Modern Periods

Over time, the inviolability of church buildings became a way for Church authorities to assert their exclusive jurisdiction over particular sites. Because this jurisdiction came at the expense of the jurisdiction of the secular legal system, and because power struggles between secular and ecclesiastic authorities were a hallmark of the Medieval period in Europe, church asylum eventually became a major site of Medieval jurisdictional conflict. One of the most important instances of such conflict occurred in the 12n century, when church asylum became caught up in the struggles over the immunity of clerics from secular criminal law sanctions. In response to controversies regarding this immunity, Pope Innocent III famously asserted that, as a general matter, it was not in the interests of justice that crimes remain unpunished. According to Mathew Price, this pronouncement opened the door to restrictions on church asylum: These developments had a devastating effect on the Church's sanctuary privileges. In response to a question posed by the King of Scotland as to what should be done with those who flee to churches to evade punishment, Innocent began by quoting the rule that no one should be dragged from a church, no matter how guilty he is. But then he stipulated a striking exception: "That is, unless the fugitive was a public thief or

46 Price, supra note 14 at 290. 47 Ibid. See generally, J. Cox, The Sanctuaries & Sanctuary Seekers of Mediaeval England (London: George Allen & Sons, 1911); Cairo, supra note 14 at 763; Price, supra note 14 at 290. 49 Price, supra note 14 at 291. destroyer of fields by night, who often had insidiously and aggressively beset public highways... For wrongdoing of this magnitude... the fugitive can be extracted, not succeeding in impunity."50

The real significance of this stipulation lay in an implicit concession that fundamentally shifted the rationale behind church asylum. If secular authorities could forcibly remove certain types of fugitives from churches, then church asylum could no longer be understood as a matter of respect for the inviolable boundary between two separate jurisdictional realms. Instead, church asylum came down to the question of what type of fugitive could be allowed to secure a suspension of the consequences of secular law - and what terms ought to be attached to that suspension.51 At first, the recognition that churches were not absolutely immune to secular interference led to a gradual restriction on the classes of fugitives eligible for church asylum. Later, however, this recognition led to the outright abolishment of religious asylum by secular authorities.

In some parts of Europe, church asylum was abruptly abolished as a matter of secular law quite early - in 1515 in the case of France, for example.53 In England, in contrast, abolition occurred later and through a more incremental process. In 1540, under the rein of King Henry VIII, the classes of English churches authorized to provide asylum were significantly restricted by statute. The authority to provide asylum that was stripped from most classes of churches was then transferred to a number of British municipalities. Moreover, both the municipalities and the limited classes of churches that retained the right to provide asylum were barred from assisting fugitives suspected of "murder, rape, burglary, highway robbery, arson, or sacrilege." In 1603, the right to accord asylum that had been transferred to municipalities was itself abolished.55 Then, in 1624, the few

Ibid, (note omitted, emphasis added). Trisha Olson, "Of the Worshipful Warrior: Sanctuary and Punishment in the Middle Ages" (2004) 16 St. Thomas L. Rev. 473 at 535-536. Carro, supra note 14 at 766. Price, supra note 14 at 291. Carro, supra note 14 at 766. 55 Ibid. remaining churches that had retained the right to provide asylum were finally formally divested of that power as a matter of secular law.5

Although secular law purported to abolish church asylum in much of Europe during the 16th and early 17th centuries, ecclesiastic law nonetheless continued to authorize the practice. For instance, in 1591, Pope Gregory XIV's Cum alias nonnulli included provisions setting aside all previous Canon law relating to asylum, and establishing new conditions upon which churches were entitled to offer asylum, a practice that was explicitly framed as a form of ecclesiastic immunity. Under these provisions, secular officials who violated church asylum could be subject to excommunication. While this remedy was rarely exercised, when it was, it produced dramatic conflicts with secular authorities. The best-known example occurred in 1700 when the procurator-general of the Great Council of Malines was excommunicated after ordering that a fugitive be forcibly removed from a church (the fugitive had taken church asylum after attacking a Spanish Capitan). The Great Council responded by fining the Archbishop responsible for the excommunication, ordering the Archbishop to rescind the excommunication, and ordering "all subjects of the king...not to have contact with the archbishop or to supply him with food."59

Despite such spectacular conflicts with secular law, Canon law continued to authorize church asylum in one form or another well into the 20l1 century. Article 1179 of the 1917 Code of Canon Law, for example, states: L'eglise jouit du droit d'asile, de telle sorte que les coupables qui s'y refugient ne peuvent en etre extrades, sauf necessite, sans l'assentiment de l'Ordinaire, ou tout au moins du recteur de l'eglise.60

56 Statute 21, James I, Ch. 28 s.7 (1623), cited in Kathleen Villarruel, "The Underground Railroad and the Sanctuary Movement: a comparison of history, litigation, and values" (1987) 60 Southern California Law Review 1429 at 1433. See also, Cairo, supra note 14 at 766. Hallebeek, supra note 32 at 177. See also, Bullarium romanum, Tom.9, Torino 1865, 424ff 58 Ibid. 59 Hallebeek, supra note 32 at 182. 60 Codex luris Canonici 1917, Art. 1179 (French translation available online: http://catho.org/9.php?d=fn) (accessed: 7 February 2007). This passage is translated to English from the Latin by commentators as, "a church enjoys the right of asylum so that This provision was retained until the latest Code of Canon Law was established in 1983. Although the 1983 Code no longer includes provisions explicitly authorizing churches to provide asylum, it is worth noting that the new Code does not explicitly prohibit the practice either. Moreover, as we shall see shortly in detail, churches - both catholic and otherwise - have continued to offer asylum subsequent to 1983.62

4,2.5. Implications of the History of Religious Asylum

There are three main of points that I would like us to take away from this brief history of Christian church asylum. First, the legal sources of churchasylum are multiple, and include Biblical passages, Greek and Roman law, medieval law, and canon law.

Second, religious asylum has historically operated in two different modes. At times church asylum appears to have been predicated on the notion that there are two distinct legal realms, the religious and the secular. Accordingly, the contention was that secular authorities had no jurisdiction over sacred sites, which were within the exclusive jurisdiction of religious authorities. When church asylum operated on this basis, it occasionally produced spectacular conflicts between the two legal orders, particularly as states increased their power vis-a-vis the Church in the post-Westphalia period. There were many other times in the history of religious asylum, however, where the practice

weak criminals who flee to it are not to be removed from it, except in case of necessity, without the assent of the ordinary or the rector of the church." James Hennesey, "Right of Sanctuary—Then and Now" (1971) 125 America 482 at 482, cited in Cairo, supra note 14 at 767 (emphasis added). The French version, however, does not limit the right of asylum solely to "weak" criminals. 6 Carro, supra note 14 at 767. There have been well-documented church asylum practices in several countries since this time, including in the United States, Canada, France, and Germany, to name only a few examples. See e.g. Susan Coutin, "Smugglers or Samaritans in Tuscon, Arizona: Producing and Contesting Legal Truth" (1995) 22 American Ethnologist 549 [Coutin, "Samaritans"]; Randy Lippert, Sanctuary, Sovereignty, Sacrifice: Canadian Sanctuary Incidents, Power, and Law (2005: Vancouver, UBC Press) [Lippert, Sanctuary]; Phillippe Segur, "L'asile religieux dans la modernite" (1997) 53 Migrations Societe 61; Verena Mittermaier, "Church Asylum in Germany: Experiences of more than 20 years work in the field, relevance within the church, political framework" (Berlin: German Ecumenical Committee on Church Asylum, 2007) (online: http://www.kirchenasvl.de/l_start/English/Church%20asylum%20in%20Germany.pdf) (accessed: 14 June 2007). could best be understood as a means to obtain a temporary suspension on the enforcement of secular law in order to provide religious authorities time to intercede on behalf of those who were purportedly victims of unjust, harsh, or hasty applications of secular law. Such intercessions were sometimes welcomed and sometimes resisted by secular authorities, depending largely on what type of fugitive was involved.

Third, and most importantly, when attempting to work out which of these two understandings of church asylum - or more likely, what particular of combination of these two understandings - is most appropriate at a given time, one cannot look solely at how religious asylum appears from the perspective of only one of the legal orders involved. "After all," as Hallebeek puts it, "the question regarding what justifies Church asylum can be answered in various way, i.e. according to secular law and according to ecclesiastical law and depending on the system of law we select the answer may be different."63

4.3. The US Church Sanctuary Movement(s)

Despite its formal abolishment as a matter of positive state law in the 16n and 17n centuries, religious asylum dramatically re-emerged in the United States during the 1980s in the form of the US Church Sanctuary Movement. This Movement involved asylum seekers fleeing human rights abuses in Central America - especially Salvadorans, Guatemalans and Nicaraguans.

4.3.1. The Context: Politicized Refugee Determinations

During the early 1980s - at the height of the Cold War - the US was involved in several imperial adventures in Central America. In a number of states, including El Salvador and Guatemala, the US had installed and was propping up US-friendly military

Hallebeek, supra note 32 at 180. dictatorships. In other Central American states, including Nicaragua, the US was funding and otherwise assisting US-friendly guerrilla movements. 5

The carnage produced by these US-friendly military dictatorships and guerrilla organizations was mind-boggling. For example, in Guatemala between 1980 and 1983, direct civilian casualties of the military dictatorship, and in particular of the military's scorched earth policy towards resistant regions of the country, are estimated to be in the order of 100,000 to 150,000. These figures represent a tragedy of such magnitude that Susanne Jonas describes this entire period in Guatemalan history as "a silent holocaust". 6 During the same period in El Salvador, the US-friendly military dictatorship also engaged in systemic human rights violations. The most infamous instance - largely on account of controversies surrounding the coverage it received in the US media - occurred on December 11 and 12, 1981. Over the course of these two days, an El Salvadoran military unit, the Atlacatl Battalion, which had received counterinsurgency training from the US military, razed the village of El Mozote, systemically raping, torturing, and executing the population. Similarly, in Nicaragua, the US-backed Contras engaged in human rights violations targeting civilian populations. According to the Americas Watch Committee - the US precursor to Human Rights Watch - among the war crimes committee by the Contras against civilian populations included: rape, torture, kidnapping, and indiscriminately targeting civilian homes.

See e.g. Richard mimerman, The CIA in Guatemala: The Foreign Policy of Intervention (Austin: University of Texas Press, 1982); Susanne Jonas, The Battle for Guatemala: Rebels, Death Squads, and U.S. Power (Boulder: Westview Press, 1991); Mark Gibney, "United States's Responsibility for Gross Levels of Human Rights Violations in Guatemala from 1954 to 1996" (1997) 7 J. Transnat'l L. & Pol'y 77. See e.g. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) (Merits), [1986] I.C.J. Rep. 14. 66 Jonas, supra note 64 at 148. 6 See generally Mark Danner, The Massacre at El Mozote: A Parable of the Cold War (New York: Vintage Books, 1994); Leigh Binford, The El Mozote Massacre: Anthropology and Human Rights (Tuscon: University of Arizona Press, 1996); Americas Watch Committee, "The Massacre at El Mozote: The Need To Remember" (1992) 4:2 News From Americas Watch 1. 68 Americas Watch Committee, Human Rights in Nicaragua: 1986 (New York: Americas Watch Committee, 1987). One of the ironic results of US imperial activities in Central America during the 1980s was that Central Americans began arriving in significant numbers in the United States, fleeing the human rights violations committed by US-backed governments and the violence produced by conflicts between governments and US-backed guerrilla movements. On arrival in the US, many made applications for asylum. In fact, throughout the 1980s approximately 58% of those claiming asylum in the US were from Nicaragua (25%), El Salvador (25%) and Guatemala (8%).69

Unfortunately, the US refugee determination at the time was deeply politicized, and outcomes in asylum applications were tied closely to US foreign policy considerations. In particular, those fleeing persecution at the hands of US Cold War allies faced disproportionately low success rates in their asylum applications. In 1984, for example, Salvadorans fleeing the military dictatorship were successful in less than 3% of applications for asylum.70 The equivalent figure for Guatemalans was under 1%.71 Nicaraguans on the other hand, who were fleeing persecution at the hands of the Sandinistas in their struggles with the US-allied Contras, enjoyed much higher success

79 7^ rates - as high as 84% in 1987. Success rates during the same period were similarly high for applicants from Soviet Block states such as Poland, as well as those fleeing other Cold War enemy states such as Iran.

Moreover, it was not merely the refugee determination system, but the entire immigration system, that was affected by US foreign policy considerations. Consider

Ruth Wasem, "Central American Asylum Seekers: Impact of 1996 Immigration Law", Congressional Research Service Report 97-810 (November 21, 1997) (online: http://opencrs.cdt.org/document/97-810/) (accessed: 20 February 2007) at CRS-2, Figure 1. Barbara Yarnold, Refugees Without Refuge: Formation and Failed Implementation of U.S. Political Asylum Policy in the 1980's (Lanham, Md.: University Press of America, 1990) at 25. See also, Wasem, supra note 69 at CRS-10-11. 71 Yarnold, supra note 70 at 92. See also Wasem, supra note 69 at CRS-14. 72 Yarnold, supra note 70 at 202. See also Michael J. McBride, "Migrants and Asylum Seekers: Policy Responses in the United States to Immigrants and refugees from Central America and the Caribbean (1999) 37 International Migration 290 at 296. 73 Wasem, supra note 69 at CRS-7. 74 See generally, United States, General Accounting Office, Asylum: Approval Rates for Selected Applicants (Washington, D.C.: The Office, 1987), Report: GAO/GGD-87-82FS, B-224935. removals policies, for example. According to a Congressional report, Nicaraguans were seldom deported from the United States during the 1980s: The Reagan and Bush Administrations were reluctant to deport anyone to Nicaragua as long as the Sandinistas were in power, and reportedly only Nicaraguans known to be criminal aliens were likely to be returned. Although INS denied the asylum claims of over 31,000 Nicaraguans from FY1981 through FY1989, it deported only about 750 Nicaraguans.75

Those from El Salvador, however, received very different treatment: Unlike Nicaraguans, Salvadorans who were unsuccessful in obtaining asylum were often deported... INS deported several thousand Salvadorans each year during the decade, totalling about 26,280 from FY1981 through FY1989.76

Similarly, "Guatemalan asylum seekers were treated much like the Salvadorans during the 1980s... The number of Guatemalans deported... totalled 14,346."77

As a result of the politicized asylum and removals procedures, it became clear to all involved that recourse to the official refugee determination system was simply not a viable option for those fleeing persecution in US Cold War ally states such as El Salvador and Guatemala. This did not, of course, stop the flows of asylum seekers from these countries towards the United States. Instead, it led such asylum seekers to attempt to evade official immigration channels in the US, thereby producing flows of irregular migration.

4.3.2. The US Sanctuary Movement

One result of these flows of irregular migration was that civil society organizations, especially church communities in cities along the Mexico-US border, began to encounter Salvadoran and Guatemalan irregular migrants with compelling stories of persecution, but who faced almost certain deportation if they came to the

Wasem, supra note 69 at CRS-8. 76 Ibid. atCRS-11. 77 Ibid. atCRS-14. 78 For the precise figures of the number of irregular migrants from central America arriving in the US during this period, see Wasem, supra note 69. attention of US officials. James Corbett - who became a leader of the US Sanctuary Movement - describes his personal encounter with such migrants in these terms: In April 1981, I knew and cared little about Central America. For example, I could not have named the archbishop who had been murdered the year before in El Salvador...On 4 May 1981, I heard about a Salvadoran refugee who had been caught by the Border Patrol. The following day I went looking for him. The day after that, having learned that refugees were pouring across the border but were being caught and returned by federal officials, my wife Pat and I set up an apartment for them in our home. It was soon jammed full. Assuming that life-and-death crises of this kind are always short-term emergencies, we held nothing in reserve, but in the course of the next few months we began to realize, as our energy and resources dwindled, that the emergency was chronic and the crisis in Central America may be no more than the beginning. Similar experiences were occurring in churches and homes throughout Mexico and along the length of the border.80

In response to these and similar encounters, on March 24, 1982, several churches across the United States invoked the tradition of religious asylum and declared themselves to be sanctuaries for Central American refugees. Explicitly tying into the imagery of the Underground Railroad for escaped slaves, these groups declared that because Central American refugees could not expect fair treatment within the US refugee determination system, churches would provide such refugees with safe places to stay - i.e. church buildings - where they could avoid detection by immigration officials. Ultimately, the hope was that, with the assistances of churches, Central American refugees would be able to reach either a large urban center where they could blend into the local population, or the Canadian border where they could access a refugee determination system that would take their claims seriously.83

4.3.3. The Contested Legality of the US Sanctuary Movement

For a particularly compelling account of some of these early encounters see Ignatius Bau, This Ground is Holy: Church Sanctuary and Central American Refugees (New York: Paulist Press, 1985) (see especially 38-74). on James Corbett, "Sanctuary, Basic Rights, and Humanity's Fault Lines: A Personal Essay" (1988) 5:1 Weber Studies (online: http://weberstudies.weber.edu/archiveA.htm) (accessed: 21 February 2007). Coutin, "Samaritans", supra note 62 at 552 Villarruel, supra note 56. Cairo, supra note 14 at 767; Lippert, Sanctuary, supra note 62 at 22-23. This declaration, which marks the beginning of the US Sanctuary Movement, was understood by many as a call to engage in civil disobedience.84 On this understanding, because of their perception that the official refugee determination process systematically produced gravely unjust outcomes, Sanctuary providers had no choice but to attempt to circumvent US immigration law. Consider, for example the following comments by a pastor involved in the Sanctuary Movement: In deciding to become a 'public sanctuary' for refugees from El Salvador, we are responding faithfully to God's call and in the best American tradition. We do not take breaking the law lightly. Yet our congregation voted to meet the needs of these, the least of our brothers... [ I] t is against the law of God to send the Salvadorans back to imprisonment, torture and execution. We resist these unjust laws, just as church people gave sanctuary to runaway slaves prior to the civil war.

The first Catholic Archbishop to endorse the Sanctuary Movement in the United States echoed these sentiments at a press conference held to announce his endorsement: "[W]e truly believe in the sanctity and sacredness of all human life. I had to weigh this act of civil disobedience with the very real threat to these people's lives if they were to return to their homeland."86

Others involved in the Sanctuary Movement, however, refused to characterize the assistance they provided to Central American asylum seekers as civil disobedience, because that would mean conceding that the existing US asylum policies were themselves lawful. According to those who held this view, many asylum seekers from El Salvador and Guatemala met the international refugee definition, a definition that was incorporated into US law. Such refugees were thus in principle eligible for asylum in the US. As we have seen, however, the US government had politicized its refugee determination process

CM See e.g., P. Schmidt, "Refuge in the United States: The Sanctuary Movement Should Use the Legal System" (1986) 15 Hofstra L. Rev. 79 at 95 ("There is an American historical tradition that appears to be related to some aspects of the sanctuary movement. This is the tradition of civil disobedience"); Carro, supra note 14 ("The current sanctuary movement.... violates existing immigration laws and encourages further civil disorder by enticing others to join the movement"). 85 Cited in Villarruel, supra note 56 at 1434 (emphasis added). Archbishop Rembert Weakland, cited in Douglas Colbert, "Trial Without Jury: A government's weapon against the Sanctuary Movement" (1986) 15 Hofstra L. Rev. 5 at 25. such that genuine Central American refugees were not being recognized as such - a clear example of a violation of what we saw in Chapter III to be Lon Fuller's eighth principle of legality, namely, that rules should be enforced as they are announced.87 Partly on the grounds that genuine refugees were in danger of being deported to face persecution in contravention of both international and US law, and partly on the grounds that basic norms of legality were being unduly compromised in the name of foreign policy objectives, some Sanctuary providers reasoned that taking measures to prevent Central American refugees from being deported actually upheld the rule of law. From this perspective, sanctuary could thus not be characterized as civil disobedience.88

Along these lines, Jim Corbett argued that the assistance he provided to Central American asylum seekers was not an instance of civil disobedience. Rather he contended that this assistance represented a "civil initiative", whereby citizens temporarily take on the responsibility of enforcing the law when the state fails to do so. According to Corbett, "civil initiative means doing justice, not just resisting injustice. This usually requires that [citizens] assume governmental functions on an emergency basis... The accountability of civil initiative is to the rule of law rather than to government officials."89

Similarly, Susan Coutin, who undertook extensive field research in Tucson, Arizona during the Sanctuary Movement, notes that many Sanctuary providers went to great lengths so as to be in a position to assert that they complied with good faith interpretations of both US and international law: Although theological and political commitments to an oppressed people informed their social activism, sanctuary workers successfully invoked somewhat narrower legal definitions of refugees and of persecution within their advocacy work... [RJeligious activists who met persecution victims began their solidarity work by helping Central Americans apply for political asylum. When these applications were denied, activists resorted to helping Central Americans avoid INS officials. To do so, they brought Central Americans into the United States, sheltered them in their homes

87 See above, Chapter III, Section 3.3.2. 88 See generally, Coutin, "Samaritans", supra note 62; Barbara Bezdek, "Religious Outlaws: Narratives of legality and the politics of citizen interpretations" (1995) 62 Tenn. L. Rev. 899; Teresa Phelps, "No Place to Go, No Story to Tell: The Missing Narratives of the Sanctuary Movement" (1991) 48 Wash. & Lee L. Rev. 123. Corbett, supra note 80 (emphasis added). and congregations, and transported them to "safe houses" around the country. Though the press characterized such practices as civil disobedience, movement members argued that their actions were legal. In fact, sanctuary workers in Tucson, Arizona, used U.S. and international refugee law to decide which Central Americans merited the movement's assistance in crossinR the U.S.-Mexico border. In addition, sanctuary activists around the country publicized Central Americans' "testimonies" or accounts of persecution. By publicly recounting the information that forms the basis of an asylum application, refugee testimonies articulated legal claims.90

4.3.4. The Sanctuary Trial

Although it appears that those involved in the Sanctuary Movement were divided on the issue, it is clear that the US government understood the Sanctuary Movement to involve civil disobedience. In January of 1985, after a prolonged undercover police operation, the government formally charged 16 of the participants in the Movement with violations of US immigration law.91 At trial, the prosecutor explained the motivation behind the charges: this Government cannot tolerate... individuals taking the law into their own hands in determining under their guidelines what persons may come or may not come into the United States and... flaunt... these criminal acts.92

The specific charges laid against the 16 participants in the Sanctuary Movement involved violations of 8 U.S.C. §1324, the relevant portions of which read as follows: (a) Any person... who —

(1) brings into...the United States...; (2) knowing that he is in the United States in violation of law... transports, or moves...within the United States...in furtherance of such violation of law; (3) willfully or knowingly conceals, harbors, or shields from detection...; or (4) willfully or knowingly encourages or induces...the entry into the United States of~

90 Susan Coutin, "The Oppressed, the Suspect, and the Citizen: Subjectivity in Competing Accounts of Political Violence" (2001) 26 Law & Soc. Inquiry 63 at 71 (emphasis added). 91 Coutin, "Samaritans", supra note 62 at 554. 92 Cited in Ibid, at 553. any alien...not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States...shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $ 2,000 or by imprisonment for a term not exceeding five 93 years.

The majority of the charges against the accused related to the provisions concerning aiding and abetting in the unlawful entry of aliens into the United States, as well as the unlawful transportation of aliens within the United States. Some of the participants, however, were also charged with unlawfully harbouring aliens.

At trial, the defendants did not contest the factual allegations regarding the assistance they provided to aliens. Instead they sought to present arguments about why the assistance they provided was not illegal. In particular, they contended that the aliens in question were refugees, and were thus lawfully entitled to enter or remain in the US, even if US officials failed to recognize this entitlement due to foreign policy considerations.95 In the alternative, the defendants asserted several other reasons why the assistance they provided was not unlawful, including: 1. Mistake of law - i.e. the defendants mistakenly but reasonably believed that the aliens were legally entitled to enter or remain in the US; 2. Necessity - i.e. the violations of US immigration law were the only viable

Q7 means to prevent an imminent and serious harm to third parties; 3. Freedom of religion - i.e. to the extent that US immigration laws prohibited Sanctuary practices, these laws constituted an unconstitutional infringement no upon the defendants' freedom of religion protected by the First Amendment; and, 4. Selective prosecution - i.e. the charges were impermissibly motivated not by the defendants' actions but rather by the government's disapproval of their articulated political views, as shown by the fact that others (and in particular

93 8 U.S.C. §1324 (1982) (emphasis added). 94 United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989) [Aguilar] at 667. 95 Ibid, at 676ff. 96 Ibid, at 67Iff 97 Ibid, at 692ff. 98 Ibid, at 694ff. employers) who regularly violated immigration provisions were seldom charged.

At trial, however, the District Court judge barred the defendants from presenting any of these arguments to the jury. In particular the judge ordered that: 1. No evidence will be received offered in support of or in opposition to the wisdom of any government policy or regarding any political question respecting a foreign country. 2. No evidence will be received offered to demonstrate that there was or is civil strife, lawlessness or danger to civilians in any foreign country. 3. No evidence will be received offered to establish good or bad motive on the part of a defendant of defendants. 4. No evidence of religious beliefs will be received as a defense to the charges in the indictment. 5. No evidence will be received to prove either necessity or duress on the part of any defendant for the surreptitious entry of an alien into the United States.100

On top of these orders, the trial judge also excluded evidence regarding the mistake of law defence.

Confronted with interlocutory rulings that effectively barred all the arguments that they wished to proffer, the defendants made a surprising strategic decision: When the prosecution rested its case, the defence immediately rested without calling witnesses. As one of the defendants, John Fife, put it, "The Bible says, when there is no opportunity to speak for the truth, then stand silent."

Predictably, this strategic decision did not assist the defendants' legal cases, and the jury convicted eight of the defendants.104 These convictions were appealed, but the 9th Circuit Court of Appeal denied the appeal. In his widely discussed decision upholding the convictions, Justice Hall contended that the appellants' complaint was essentially that

"Ibid, at 705ff. 100 United States v. Aguilar, No. Cr. 85-0080PHX-EHC (D. Ariz. 28 October 1985), cited in Phelps, supra note 88 at 133. 101 Phelps, supra note 88 at 133. 102 Ibid, at 136. 103 Fife, cited in Ibid. (4 Aguilar, supra note 94 at 667. during the initial trial they had not been permitted "to put Reagan Administration foreign policy on trial."105 To allow them to do so on appeal, Justice Hall insisted, "would be foolish."1 6 In 1991, the Supreme Court refused leave to appeal this decision.107

4.3.5. The Culmination of the Sanctuary Movement

Despite the US government's success in court, by the time the Court of Appeal released its decision, the Sanctuary Movement had experienced exponential growth. What began with a handful of churches in 1982 had, by 1986, expanded to a network of at least 150 churches offering sanctuary.108 By 1987, over 400 known sites across the United States had declared themselves to be sanctuaries. These sites were by no means restricted to churches. For example, many universities declared themselves to be sanctuaries for Central American asylum seekers, as did major cities such as San Francisco and Los Angeles. ' On March 28l1, 1986, the Governor of New Mexico, Toney Anaya, went so far as to issue a proclamation that made the entire state a sanctuary for Salvadoran and Guatemalan asylum seekers.112 In response to sharp criticism from INS officials regarding the legality of this proclamation, Governor Anaya invoked the principle behind the Nuremberg trials: If the question is whether or not sanctuary activists are violating the mistaken interpretation of law by bureaucrats at the INS or the current administration, then the answer is clearly yes. The sanctuary activists openly admit this "violation." But if the question rises to the next higher level, and becomes whether or not sanctuary activists are disobeying international law, while INS officials are enforcing it, then the answer

105 Ibid, at 673. 106/&/

By 1991 - the same year the Supreme Court refused to hear the appeal from the convictions of the sanctuary providers - the political pressure on the US government through the Sanctuary Movement, along with several pending lawsuits, could no longer be ignored. On January 31, 1991, the US District Court for Northern California approved a settlement for a class action suit brought by one of the major protagonists in the Sanctuary Movement, the American Baptist Church.'14 In this settlement, the government acknowledged that its refugee determination process had systematically mistreated Salvadoran and Guatemalan asylum seekers. In particular, the settlement agreed that: foreign policy and border enforcement considerations are not relevant to the determination of whether an applicant for asylum has a well-founded fear of persecution;

the fact that an individual is from a country whose government the United States supports or with which it has favorable relations is not relevant to the determination of whether an applicant for asylum has a well-founded fear of persecution;

whether or not the United States Government agrees with the political or ideological beliefs of the individual is not relevant to the determination of whether an applicant for asylum has a well-founded fear of persecution; [and,]

the same standard for determining whether or not an applicant has a well- founded fear of persecution applies to Salvadorans and Guatemalans as applies to all other nationalities."5

The settlement also explicitly entitled most Salvadorans and Guatemalans who resided in the US as of 1990 to make de novo asylum applications.116

By early 1991, then, the Sanctuary Movement had achieved its objectives. The US refugee determination system - though still imperfect - was now less subject to

113 Ibid, at 110. 114 American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) at 799. 115 Ibid, at 799-800. u6Ibid. at 799-800. political interference motivated by foreign policy considerations."7 Moreover the particular groups of migrants whose credible accounts of feared persecution touched the lives of so many across the United States, now had a relatively viable path to obtain refugee protection. It is comes as no surprise, then, that the Sanctuary Movement quickly

110 faded away.

4.3.6. A New Sanctuary Movement?

Recent months, however, have seen something of a revival of sanctuary practices in the United States. In the summer of 2006, with debates regarding US policy towards undocumented migrants dominating US newspaper headlines,119 the Adalberto United Methodist Church in Chicago publicly provided sanctuary to Elvira Arellano. Arellano, a Mexican citizen, had entered the United States as an irregular migrant in 1997, whereupon she immediately began working without legal authorization. In 1999, she gave birth to a son, who is a US citizen. In 2000, Arellano obtained work as a janitor at the Chicago O'Hare International Airport using a false social security number. In 2002, however, due to enhanced post-9/11 security measures, Arellano's use of false documents was detected and she was subject to removal proceedings. On August 15, 2006, rather than reporting to immigration officials for deportation as ordered, she requested and

1 1 7 To this day, however, foreign policy considerations continue to influence the adjudication of asylum applications in the US, albeit to a lesser extent. In 2005, for example, US asylum seekers from Venezuela were more successful (44%) than were US asylum seekers from Colombia in their initial applications (33%). However, when all countries of asylum are taken into account, these figures were reversed: around the world in 2005, Colombian asylum seekers were more successful (49%) than were Venezuelan asylum seekers {31%). Moreover, the US figures skew the global average. Consider, for example, that in Canada the success rates for Colombians asylum seekers (82%) far exceed that of Venezuelans (41%). UNHCR, 2005 Global Refugee Trends (Geneva: UNHCR, 2006) at Table 7 & 9. The only reasonable explanation for why Venezuelans are more successful than Colombians in their US asylum applications relates to foreign policy considerations: the US has close ties with the Colombian government and a highly conflicted relation with Venezuela's government under Hugo Chavez. Lrppert, Sanctuary, supra note 62 at 4. In the spring of 2006, for example, some of the largest public rallies in recent US history were held by protestors in over 100 cities to pressure the government to pass legislation providing opportunities for undocumented migrants in the US to obtain legal status. Rachel Swarns, "Immigrants Rally in Scores of Cities for Legal Status" in The New York Times (11 April 2006) Al. obtained sanctuary from the Adalberto United Methodist Church, where she remained for

i o r\ several months.

Arellano's case received a great deal of public attention, particularly after her seven-year old son traveled to Mexico to testify before the Mexican Congress on his mother's behalf. In response to his testimony, the Mexican Congress passed a resolution requesting the US government to temporarily suspend all deportations of Mexican undocumented migrants with US citizen children.121 Notwithstanding this sustained media attention - or perhaps because of it - immigration authorities declined to enter the Church to arrest Arellano and effect her deportation. In fact, a Bill currently under consideration in the US Congress would grant her, along with 32 other undocumented

1 99 migrants, permanent resident status in the United States. This Bill, however, has been overtaken by recent events. On August 19, 2007, Arellano, who had temporarily left sanctuary in order to meet with other faith-based communities to raise awareness about her case (and the cases of many like her), was arrested and deported. American immigration authorities were quick to note that her arrest - which did not occur within a

lzu Oscar Avila, "Act of faith, defiance" in The Chicago Tribune (16 August 2006), 2006 WLNR 14177554; Oscar Avila, "Activist ready for long haul at church" in The Chicago Tribune (17 August 2006), 2006 WLNR 14246227; Gretchen Ruethling, "Chicago woman's stand stirs immigration debate" in The New York Times (19 August 2006) A10; Kari Lydersen, "Church is sanctuary as deportation nears" in The Washington Post (17 August 2006) A10. 1 9 1 Oscar Avila, "Boy wages fight for mother" in The Chicago Tribune (15 November 2006), 2006 WLNR 19889517. Saul Arellano also traveled to Washington to lobby on behalf of his mother. Noreen Ahmed-Ullah, "Immigrant's son to lobby on her behalf in capital" in The Chicago Tribune (3 October 2006), 2006 WLNR 17100303. 199 U.S., Bill H.R. 2182, For the relief of Elvira Arellano, Juan Carlos Arreguin, Martin Guerrero Barrios, Maria I. Benitez, Francisco J. Castro, Jaime Cruz, Martha Davalos, Herminion Davalos, Disifredo Adan Delvalle, Angel Espinoza, Veronica Lopez, Francisca Lino, Maria A. Martin, Juan Jose Mesa, Maria Natividad Loza, Blanca E. Nolte, Domenico Papaianni, Romina Perea, Juan Jose Range! Sr., Dayron S. Rios Arenas, Araceli Contreras-Del Toro, Doris Oneida Ulloa, Bladimir I. Caballero, Arnulfo Alfaro, Consuelo and Juan Manuel Castellanos, Eliseo Pulido, Gilberto Romero, Maria Liliana Rua-Saenz, Aurelia and Tomas F. Martinez-Garcia, Flor Crisostomo; Fatuma Karuma, Stanislaw Rychtarczyk, Slobodan Radanovich, and Agustin Sanchez- Dominguez, 110th Cong., 2007. 19^ R. Archibold, "Illegal immigrant advocate for families is deported" in The NY Times (21 Aug 2007) 14. church building - did not signal a crackdown by state authorities against sanctuary practices, and was not intended as a "message to the sanctuary movement."124

This last point is important because in early 2007, inspired by Elvira Arellano's example, a number of US churches publicly offered sanctuary to undocumented migrants with US citizen children who were facing deportation.125 By May of 2007, sufficient support for such sanctuary practices had accumulated that several major US congregations came together to hold press conferences officially launching what they call "The New Sanctuary Movement." A website run by these congregations offers the following description of this Movement: As an act of public witness, the New Sanctuary Movement will enable congregations to publicly provide hospitality and protection to a limited number of immigrant families whose legal cases clearly reveal the contradictions and moral injustice of our current immigration system while working to support legislation that would change their situation.

These families will be in the deportation process, include citizen children, have adults with good work records and have a potential case under current law. The Center for Constitutional Rights is working with a broad network of lawyers across the country to provide expert legal counsel and support to each family. Participating congregations will offer a family hospitality for a limited period; the family will rotate from one congregation to another as needed until their case is resolved.127

As with the Sanctuary Movement from the 1980s, controversies abound regarding the legality of the practices involved in the New Sanctuary movement. The Editorial Board of The Chicago Tribune, for example, decried Elvira Arellano's decision to take sanctuary in a church to avoid deportation: "Many illegal immigrants face the same situation as Arellano... They are all subject to U.S. law, as is Arellano. It is time for her

124 Jim Hayes (INS field office Director), cited in Ibid. '"5 See e.g., Lornet Turnbull, "Groups condemn immigration raids" in The Seattle Times (16 February 2007) Bl; Louis Sahagun, "L.A. Church in forefront of sanctuary movement" in The Los Angeles Times (23 March 2007) Bl; Dainel Gonzalez, "Valley congregations may participate in sanctuary movement" in The Arizona Republic (1 April 2007) A21. 1 James Barron, "Churches to offer sanctuary" in The New York Times (9 May 2007) Bl. 127 New Sanctuary Movement, "Prophetic Hospitality: Strategy for a New Movement" (online: www.newsanctuarymovement.org) (accessed: 17 June 2007). to abide by that law." Similarly, in response to the announcement of the official launch of the New Sanctuary Movement, a spokesperson for the US Department of Homeland Security said, "nobody is above the law and... removal orders... should be complied with." Moreover, some faith-based communities have explicitly cited the purported illegality of sanctuary practices as a reason for refusing to join the New Sanctuary Movement: Pastor Ray Young, one of about 30 pastors serving East Hill Church in Gresham, said the Foursquare mega church would not be offering sanctuary. "We go by the general policy that Scripture tells us we need to respect civil law whether we like it or not."

The organizers of the New Sanctuary Movement, however, contend that the church groups currently offering sanctuary do not actually breach US law. The organizers do not, however, resort to the same arguments deployed by those involved in the Sanctuary Movement in the 1980s. In particular, they do not contend that the undocumented migrants they assist are refugees, and thus are entitled to remain in the United States under international refugee law. Instead, they concede that the undocumented migrants in sanctuary violate US immigration law by remaining in the US without authorization. However, in spite of this concession, the churches make two legal arguments to justify sanctuary practices.

First, they contend that US immigration law can itself be subject to rule of law critiques. In particular, churches offering sanctuary argue that the enforcement of US immigration law with regard to undocumented migrants is arbitrary, thereby violating rule of law principles (i.e. Fuller's eighth principle of legality), and exposing undocumented migrants to abuse from unscrupulous state officials and private parties. In this regard, the churches note - as I did in Chapter III132 - that the government does not actually make a sustained effort to deport the millions of undocumented migrants living

"Elvira Arellano and the law", Editorial in The Chicago Tribune (17 August 2006), 2006 WLNR 14236339. Marc Raimondi, cited in Barron, supra note 126. 130 Angie Chuang & Nancy Haught, "Raid makes debates over sanctuary real" in The [Portland] Oregonian (15 June 2007) Bl. See above, Chapter III, section 3.3.8. in the US and who form an integral part of the US economy in spite - or perhaps because - of their precarious position. For example, as David Bacon puts it in an article in the inaugural issue of the National Newsletter of the New Sanctuary Movement: Inequality is the most important product of U.S. immigration policy, and a conscious one... U.S. immigration policy doesn't deter the flow of migrants across the border. Its basic function is defining the status of people once they're here. And a policy based on supplying labor to industry, at a price it wants to pay, has inequality built into it from the beginning. [Such an] immigration policy... inevitably produces rootless people, vulnerable to exploitation.

On this basis, it is possible argue that churches involved in the New Sanctuary Movement actually enhance the rule of law when they resist the sporadic enforcement of immigration laws that create a permanent underclass of undocumented labourers who are effectively excluded from the legal processes that offer US citizens some degree of protection against inequality and vulnerability to exploitation.

The second argument used to justify sanctuary practices is based on the notion that churches providing sanctuary are not engaged in any unlawful activity, even if the undocumented migrants taking sanctuary are technically in breach of US immigration law. This argument is based on the churches' practice of reporting directly to the relevant US immigration authorities the presence of any undocumented migrants provided with sanctuary. As a result, while the organizers of the New Sanctuary Movement acknowledge that there have been successful prosecutions resulting from church sanctuary practices during the 1980s, they suggest that these precedents are inapplicable to the present circumstances, because all past convictions involve defendants who simply kept silent about the aliens' presence, rather than individuals who have reported the aliens' presence to the INS but who have continued to shelter them. Accordingly, a congregation that houses undocumented migrants will likely not be prosecuted unless they are attempting to conceal such alien from Immigration and Custom Enforcement detection.'

133 D. Bacon, "The Political Economy of Migration" (2008) 1 National Newsletter of the New Sanctuary Movement 6 at 8. 134 134 New Sanctuary Movement, "L"Lega< l Help & Support" (online: http://www.newsanctuarymovement.org/legal.htm) (accessed: 17 June 2007). In other words, the organizers of the New Sanctuary Movement - supported by the Center for Human Rights and Constitutional Law in Los Angeles135 - suggest that it is possible to distinguish between the conceded breaches of US law committed by undocumented migrants who take sanctuary, on the one hand, and the purported legality of church communities openly providing sanctuary, on the other hand. It remains to be seen whether US prosecutors and courts will accept this view, particularly given that the relevant legislative provision prohibits not only "concealing" and "shielding from detection", but also "harboring" aliens who are unlawfully present in the United States.136

Regardless of what US authorities ultimately make of the legal reasoning deployed by the New Sanctuary Movement, it remains interesting that arguments about legality and the rule of law form an integral part of the New Sanctuary Movement, much like they did in the US Sanctuary Movement of the 1980s. It is also worth noting that sanctuary providers outside the US have employed similar lines of legal reasoning to those deployed by proponents of the New Sanctuary movement. In fact, as we shall now see, such reasoning plays a prominent role in debates surrounding the legality of ongoing sanctuary incidents in the Canadian context.

4.4. Canadian Church Sanctuary Incidents

The US Sanctuary Movement of the 1980s has received a great deal of scholarly attention and we can expect similar interest in the New Sanctuary Movement that has emerged in recent months. Comparatively few scholars137 are aware, however, that there have been ongoing church sanctuary practices in Canada throughout the past quarter century.

4.4.1. The Lippert Study: Canadian Sanctuary Incidents

]i5Ibid. 136 8 U.S.C. 1324(a)(l)(A)(iii) (1988). 137 Notable exceptions include Lippert, Sanctuary, supra note 62; David Matas, "Canadian Sanctuary" (1988) 8:2 Refuge 14; Charles Stastny & Gabrielle Tyrnauer, "Sanctuary in Canada" in, V. Robinson (ed.), The International Refugee Crisis: British and Canadian Responses (London: Macmillan, 1993). In Sanctuary, Sovereignty, and Sacrifice, Randy Lippert seeks to redress the lack of attention paid to Canadian sanctuary practices. Through a systematic study of media sources, supplemented by open-focused confidential interviews with dozens of individual sanctuary providers, Lippert amasses a detailed database of sanctuary incidents across the 139 country.

Drawing on the work of Paul Weller, who studied sanctuary incidents involving migrants in Britain during the 1980s, Lippert suggests that sanctuary can involve either "exposure" or "concealment" strategies - a distinction that is of obvious relevance to comparisons between the old and new US Sanctuary Movements. When sanctuary providers employ exposure strategies, they make sustained efforts to publicize the stories of those provided sanctuary, in the hopes that such publicity will make it politically difficult for state officials to undertake deportation activities. When they resort to concealment strategies, in contrast, sanctuary providers actively hide those taking sanctuary so as to avoid their detection by state officials and the deportation that would follow from that detection. In his study of Canadian sanctuary incidents, due in part to methodological considerations - i.e. exposure practices leave more traces than concealment practices142 - Lippert concentrates on the former. For the purposes of his study, then, Lippert defines sanctuary as, "those incidents in which migrants actually entered and remained in physical protection [in a church] to avoid deportation and that entailed strategic efforts to expose this fact to mass media, communities, and political authorities."143

Based on this definition, Lippert identifies 36 sanctuary incidents in Canada during a twenty-year period beginning in 1983, when the first known instance of church sanctuary in Canada occurred.144 These 36 incidents concerned 261 migrants of 28 different nationalities, with no particular country of nationality representing more than

Lippert, Sanctuary, supra note 62 at 4. ii9Ibid. at 14-15. 140 Ibid, at 15. Ibid. Ibid, at 16. Ibid. 144 Ibid, at 10% of the migrants involved.145 All but two incidents involved non-citizens subject to deportation who had previously made unsuccessful refugee claims in Canada, and who continued to allege that they faced serious risks of persecution if deported. 146

Several different church organizations were involved in these 36 incidents. The major denominations represented were: United (31%), Roman Catholic (25%), Anglican (14%>), Unitarian (6%), and Baptist (6%>).147 During the period of Lippert's study, all the incidents involved Christian denominations. More recently, however, a mosque in Montreal149 and a Hindu temple in Vancouver150 publicly provided sanctuary to individuals facing deportation.

Perhaps the most striking of Lippert's findings relates to the outcomes of sanctuary incidents in Canada. In all 36 cases, sanctuary successfully delayed deportation. Moreover, during the 20-year period of the study, the police refrained from entering a church to arrest migrants in sanctuary. Similarly, no sanctuary providers were charged with violating Canadian law.15 More surprising, however, is that in 58% of the sanctuary incidents Lippert identifies, the church community succeeded in negotiating a long-term solution with immigration officials. Such negotiations ultimately led to migrants obtaining the legal right to remain in Canada indefinitely, usually as permanent residents. The precise path to Canadian permanent residence varied from

145 Ibid, at 35-37. 146 Ibid, at 37. 147 Ibid, at 37-38. 148 Ibid, at 37. Lisa-Marie Gervais, "L'imam Jaziri s'enfermera dans sa mosquee pour eviter d'etre expulse" Le Devoir (16 December 2006) A4. J. Armstrong, "Refugee seeks asylum in Sikh temple" in The Globe & Mail (9 July 2007) SI. Lippert, Sanctuary, supra note 62 at 38. 152 Ibid, at 40. In one fascinating case in 1998, however, the police arrested migrants taking sanctuary in a self-declared "church" that lacked official recognition. Ibid, at 40, n96. 153 Ibid, at 40. 154 Ibid. The precise negotiated route into Canadian permanent residence varied across the sanctuary incidents. Some cases involved discretionary ministerial permit procedures. Others involved the migrants leaving Canada for a third country for a specified period, case to case. Most commonly, though, it resulted from an exercise of the discretionary authority of immigration officials to make exceptions on humanitarian and compassionate grounds to the regular rules regarding qualifications for permanent residence.156 In the remaining 42% of cases, where migrants in sanctuary did not ultimately obtain permanent residence, they voluntarily left the church, either to go underground or to cooperate with their deportation.157

Five points bear emphasizing regarding these strikingly successful Canadian sanctuary incidents.

4.4.2. Contextualizing Success Rates in Canadian Sanctuary Incidents

First, without wishing to downplay the hardship associated with spending several months physically confined to a church building that is not designed for human

1 CO habitation, it must be said that the success rate in sanctuary incidents is truly remarkable. To put this rate in context, consider that the success rate in judicial reviews of negative refugee determinations is less than 2%.159 Other means of delaying the with an agreement that their applications to immigrate to Canada made from abroad would be expedited. Ibid, at 40-41. i55Ibid. at 40-41. Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], s.25(l): The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. Lippert, Sanctuary, supra note 62 at 40-41. 15 The average duration of sanctuary incidents was 5 months, but a significant minority lasted over a year. Ibid, at 27. 159 In 2001, for example, there were 4490 applications for leave to appeal negative refugee determinations. Leave was granted in 557 of the cases. Of these cases only 69 resulted in the Federal Court overturning the initial negative decision. John Frecker, Immigration and Refugee Legal Aid Cost Drivers: Final Report, (Ottawa, Department of Justice, 2002) at 84. deportation of unsuccessful refugee claimants are similarly ineffectual. In other words, sanctuary is one of the most effective avenues currently available to unsuccessful refugee claimants seeking the right to remain in Canada.

4.4.3. Screening Procedures: Mimicking Official Refugee Determinations

Second, one of the reasons sanctuary enjoys a high success rate in Canada is because churches carefully screen applicants to ensure that only those who have strong cases for refugee protection are accorded sanctuary.161 As a result, far more migrants request sanctuary than are accorded it. For example, United Church Pastor Darryl Gray, whose congregation offered sanctuary to migrants on two occasions, notes that he turns away requests for sanctuary from unsuccessful refugee claimants on nearly a weekly basis, "because they are often economic refugees who can't prove they face physical danger."162

To help congregations screen applicants for sanctuary, the United Church has prepared a detailed pamphlet entitled Sanctuary for Refugees?: A Guide for Congregations. This 30-page pamphlet, in addition to reproducing the text of the refugee definition as established by the 1951 UN Convention Relating to the Status of Refugees, offers advice regarding steps that can be taken to determine whether a person requesting sanctuary meets that definition. Included among that advice is the following: A congregation or individual considering a request for sanctuary to support a person who has had his or her refugee claim rejected must learn as much as possible about that person to determine whether or not this is a bona fide claim. Over two to three interviews, with at least one person

For example, Pre-Removal Risk Assessments, a final opportunity immediately prior to deportation to present new evidence that one faces a risk in one's home countries, have a success rate of around 3% in recent years. Benjamin Dolin & Margaret Young, Background Paper: Canada's Immigration Program (Ottawa: Parliamentary Information and Research Service, 2004) BP190E, at 16. See generally, Lippert, Sanctuary, supra note 62 at 68-75. 162 Michelle MacAfee, "Canadian Churches follow Old Testament tradition in giving haven to refugees" (10 August 2003) Canadian Press Newswire (LEXIS). 163 United Church of Canada, Sanctuary for Refugees?: A Guide for Congregations (Toronto: United Church of Canada, 2004). 164 189 U.N.T.S. 137 (adopted July 28, 1951; entered into force April 22, 1954). present consistently throughout and a translator if necessary, it is essential to learn as much as possible about the person's story. In the interest of clarity, no reasonable question should be ignored or considered impolite or irrelevant.

Check the merits of the case with representatives of the United Nations High Commissioner for Refugees and Amnesty International... Find out whether the country has a history of gross and systemic human rights violations and tolerates the persecution of minority groups... Country Reports are also available through regional Documentation Centres of the Immigration and Refugee Board.

In other words, the United Church suggests that congregations carefully screen applicants for sanctuary using essentially the same legal tests, the same means of evaluating testimony, and even the same documentary evidence regarding country conditions that are employed in the official Canadian refugee determination process. Moreover, the United Church is not the only denomination to develop formal screening practices that mimic the official refugee determination system in this manner. Consider, for example, the following guideline adopted at the 132" General Assembly of the Presbyterian Church in Canada: Should a congregation of The Presbyterian Church in Canada desiring in obedience to God's word and its own conscience, offer sanctuary to an asylum seeker whose claim for refugee status has been rejected and who faces a risk of persecution if returned to his/her country of origin, it may consider the following as appropriate steps to follow: 1) have an independent review of the evidence provided by the asylum seeker (or the lawyer acting on behalf of the asylum seeker) that confirms the risk; 2) have exhausted all of the legal and political recourses as outlined in this statement; 3) have followed the decision-making procedures of The Presbyterian Church in Canada.

Given the existence of such guidelines, it is likely that the small number of migrants who successfully pass through these careful screenings procedures have highly persuasive cases. It is therefore understandable that, in combination with pressure brought to bear on political actors, sanctuary providers are frequently able to persuade

165 United Church of Canada, supra note 163 at 7. Presbyterian Church in Canada, Sanctuary: A statement and guidelines for congregations, Report Presented to the 132" General Assembly (2006) (online: http://www.presbyterian.ca/justice/reports/0506-overturel4-sanctuary.pdf) (accessed: July 23, 2007) at 12. immigration officials to exercise their discretion to grant an exception on humanitarian and compassionate grounds to the regular rules regarding qualification for Canadian permanent residence.

4.4.4. Policy Change & Sanctuary Incidents

The third point that I would like to note regarding successes in Canadian sanctuary incidents is that sanctuary has been effective not only at the level of individual cases, but also at the political level of generating debate about policy change. To appreciate why this is the case, it is worth considering that, according to Lippert's study, the frequency of Canadian sanctuary incidents is increasing. Indeed, 19% of the sanctuary incidents Lippert identified from 1983-2003 occurred in 2003.,68 One of the reasons for this increase is a frustration that sanctuary providers display towards a feature of Canada's refugee determination system.169 As we saw in Chapter III, Canada's current immigration legislation, passed in 2001, sets out a procedure through which unsuccessful refugee claimants may have their initial refugee determinations reviewed on their merits by the Refugee Appeal Division (RAD) of the Immigration and Refugee Board. 7 The Canadian government, however, selectively implemented the provisions of the

1 "7 I legislation, bringing the provisions of the legislation into force except those pertaining to the RAD. As the United Church's pamphlet on sanctuary notes,

See text accompanying notes 154-156. Lippert, Sanctuary, supra note 62 at 27. 16 See e.g. Steve Lambert, "Churches protect refugee claimants" in The Toronto Star (27 November 2006) CI 1 ('"There are probably eight to 10 different ways of (appealing) a decision once it's made,' said Mary Jo Leddy of the Ontario Sanctuary Coalition. 'But the sum of all of them doesn't equal a really serious appeal on the merits'"); Ingrid Peritz, "Deportation orders stayed in two sanctuary cases" in The Globe & Mail (15 December 2004) A15 ('"If there were an actual appeal mechanism [in Canada's refugee determination system], most of these cases wouldn't have to consider sanctuary," said Montreal lawyer Rick Goldman'"); Maria Jimenez, "Historic crypt becomes sanctuary for failed refugee claimant" in The Globe & Mail (25 September 2004) A6 ("Mary Corkery, executive director of KAIROS, an ecumenical social justice organization representing 11 Canadian churches and church organizations, [said]... 'there is... an urgent issue at stake: the lack of merit-based appeals for refugees'"). 170IRPA, supra note 156 at ss. 110-111 & 171. 171 Among the provisions that were brought into force was one that reduced the number of adjudicators at refugee hearings. The prior practice was for two adjudicators to hear refugee claims, only one of whom needed to be persuaded in order for the claimant to until the appeal comes into force 'refugee determinations' will continue to be made without the benefit of a sober second opinion or an effective way to correct factual errors. This...has increased the chances of bona fide refugees being deported.173

Similarly, according to a declaration by the Interfaith Sanctuary Coalition: Any system of adjudication is open to error. That is why virtually every decision-making process involving rights of any significance gives rise to a right of appeal. Since the abolition of capital punishment in Canada, the decision to grant or refuse refugee determination status is the only judicial decision in Canada which can result in someone's death.

Despite the extreme gravity of the refugee determination decision, there is no appeal in the merits available to refused refugee claimants.... The lack of appeal has been the most important flaw in Canada's refugee determination system, since its inception in 1989. This flaw has consistently been pointed out by refugee advocates. Parliament recognized the need for an appeal and provided for one when they adopted the new Immigration and Refugee Protection Act. However, the government ignored the clear will of Parliament and implemented the law in June 2002, without implementing the sections of the law that gave refugee claimants access to the appeal.174

Such objections - particularly the notion that all systems of adjudication are open to error, and therefore because refugee adjudication has life and death consequences, there ought to be a robust appeal mechanism - seem especially persuasive in light of the vast disparities in refugee claim grant rates across individual Canadian refugee adjudicators noted in the previous Chapter. Indeed, sanctuary providers often tie their critiques of

receive refugee protection. The current legislation, however, makes single adjudicator hearings the standard practice. Ibid., s.63. 17 Order Fixing June 28, 2002 as the Date of the Coming into Force of Certain Provisions of the Act, SI/2002-97, C. Gaz. 1997.11.1637. The government's purported legal authority for selective implementation flows from the vague boilerplate coming- into-force provision of the legislation: "The provisions of this act come into force on a day or days to be fixed by order of the Governor in Council." IRPA, supra note 156, s.275 (emphasis added). United Church of Canada, supra note 163 at 5. 174 Interfaith Sanctuary Coalition, "Why do People Turn to Sanctuary?" (9 October 2003) (online: http://www.ccrweb.ca/whysanctuary.htm) (accessed: 23 February 2007). 175 See above, Chapter III, Section 3.3.1. 240

the Canadian government's failure to implement the RAD to media reports regarding inconsistent refugee adjudication at Canada's IRB.

In 2006, in response to these and similar critiques,177 Bloc Quebecois MP Nicole Demers introduced a Private Member's Bill requiring the government to immediately proclaim the coming into force of the legislative provisions establishing the RAD.178 At the time of writing, the Bill has passed the third reading in the House of Commons, and appears likely to be passed in the Senate. In Parliamentary debates regarding the RAD - including debates surrounding this Bill - the failure to implement the RAD is frequently and explicitly linked to the fact that unsuccessful refugee claimants who say that mistakes were made in their initial refugee determination resort to church sanctuary to avoid deportation.17 It thus seems that sanctuary practices have been influential not just in the lives of individual migrants, but also in the larger debates about Canadian refugee policy.

4.4.5. Recent Trends: Violations of Sanctuary

The fourth point I would like to make regarding the efficacy of Canadian sanctuary practices, is that there have been two recent cases which, at first glance, appear

R. Lippert, "Sanctuary and Law in Canada: A Governmentality Perspective" in Giving Sanctuary to Illegal Immigrants: Between Civil Disobedience and Legal Obligation (Conference Proceedings of the 3rd International SoDrus Conference) (forthcoming). 177 See e.g. Inter-American Commission on Human Rights, "Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System" (28 Feb 2000) OEA/Ser.L/V/II.106; Canadian Council for Refugees, "Refugee Appeal Division Backgrounder" (December 2006) (online: http://www.ccrweb.ca/RADbackgrounder.pdf) (accessed: 23 February 2007); Amnesty International Canada, "Canada: Refugees - No recourse to fair appeal" (online: http://www.amnesty.ca/take_action/actions/canada fair_appeal.php) (accessed: 23 February 2007). Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171), 1st Sess., 39th Pari., 2007 (as passed by the House of Commons 30 May 2007). 179 See e.g. House of Commons Debates, 39*1 Parliament, 1st Session, No.098 (29 January 2007) at 1105 (Nicole Demers); House of Commons Debates, 39th Parliament, 1st Session, No.098 (29 January 2007) at 1140-1150 (Bill Siksay); House of Commons Debates, 39th Parliament, 1st Session, No. 122 (2 March 2007) at 1355 (Paul Dewar); House of Commons Debates, 38th Parliament, 1st Session, No.010 (18 October 2004) at 1420 (Meili Faille); House of Commons Debates, 37n Parliament, 3' Session, No.014 (19 February 2004) at 1450 (Madeleine Dalphon-Guiral). to suggest that sanctuary may be less successful today than it was during the period of Lippert's study (i.e. from 1983-2003).

The first incident occurred on March 5, 2004, when police officers stormed the Saint-Pierre United Church in Quebec City. The police officers were searching for Mohamed Cherfi, an Algerian political activist who had made an unsuccessful refugee

1 OA claim and who was subject to a deportation order. To avoid his immanent deportation, Cherfi had taken sanctuary in the church after convincing the church community that he faced a serious risk of human rights violations should he be removed to Algeria. In the first known instance of police violation of sanctuary in Canadian history, Cherfi was arrested inside the church and taken to a police station, where he was immediately transferred to the custody of Canadian Border Service Agency (CBSA) officials. Several years prior, Cherfi had transited to Canada via the United States. Thus, to effect his deportation, CBSA officials drove him directly to the border, where he was turned over to 1 & 1 US immigration authorities.

The second incident occurred on February 17, 2007, when the police arrested Amir Kazemian inside an Anglican church in Vancouver. Kazemian, also an unsuccessful refugee claimant subject to a deportation order, had been in sanctuary in the church for almost three years. He alleged that his refugee claim had been wrongly denied, noting that his mother obtained refugee status in Canada (in a decision made by a different refugee adjudicator) on the basis of identical factual allegations. Curiously, there is no indication that the police set out to breach sanctuary in this case. In fact, it was Kazemian who called the police to the church to investigate a complaint about a client of

Cherfi was also subject to an outstanding warrant for allegedly violating bail conditions imposed in relation to a minor altercation at a public demonstration. Donna Sinclair, "The Cherfi arrest: Sanctuary violated" in The United Church Observer, online ed. (April 2004) (online: http://www.ucobserver.org/archives/apr04_nation.shtml) (accessed: 8 January 2007). It is worth noting that Cherfi had long been an activist working on behalf of Algerians without status in Canada. For an interesting discussion of this movement, see Peter Nyers, "Abject Cosmopolitanism: the politics of protection in the anti-deportation movement" (2003) 24:6 Third World Quarterly 1069 at 1080-1084. 181 Sinclair, supra note 180; Lippert, Sanctuary, supra note 62 at 166ff; Isabelle Porter, "Le Canada expulse le militant algerien Mohamed Cherfi" in Le Devoir (6 March 2004) A5. an online business he ran from inside the church who had allegedly engaged in threatening behavior. When the police officer arrived at the church and discovered the outstanding deportation order, however, she promptly arrested Kazemian. This move surprised Kazemian's supporters because other police officers had previously interacted with him at the church on several prior occasions without incident.

While the Cherfi and Kazemian cases might appear to suggest that sanctuary in Canada has become less successful than it was in the 1980s and 1990s, on closer inspection such a conclusion does not seem warranted. To appreciate why this is the case, it is important to understand that neither Cherfi nor Kazemian were ultimately returned to their country of origin where they alleged they faced persecution. In Kazemian's case, within two days of his arrest, which had generated significant media attention, Citizenship and Immigration Canada exercised its discretion to grant his prior request for Canadian Permanent Residence on humanitarian and compassionate grounds. Canadian Immigration officials claimed - somewhat implausibly - that the timing of the decision was not related to his arrest.183

In Cherfi's case, resolution was much longer in coming. When Cherfi was forcibly removed from sanctuary in Canada and deported to the United States he applied for US asylum based on risks of persecution he claimed to face in Algeria. US immigration officials initially denied his application. He then appealed this decision to the Board of Immigration Appeals (BIA). Fifteen months after he was first deported from Canada to the United States - during which time he remained in US immigration detention - the BIA announced its decision: the initial denial was overturned and Cherfi was granted refugee status.'85 The irony was not lost on his Canadian church sanctuary

Petti Fong, "Iranian refugee granted asylum" in The Globe & Mail (20 February 2007) A12. See also, "Iranian refugee Amir Kazemian to be allowed to remain in Canada" in Diocese of New Westminster News (14 March 2007) (online: http://www.vancouver.anglican.ca/News/tabid/27/ctl/ViewArticle/ArticleId/450/mid/486/ Default, aspx) (accessed: March 20, 2007). Ibid. 1 4 Ingrid Peritz, "Algerian arrested in church denied asylum in U.S." in The Globe & Mail (23 October 2004) A24. 185 Isabelle Porter, "Les Etats-Unis donnent raison a Cherfi" in Le Devoir (3 June 2004) A4 ["Cherfi"]. providers that it took a US refugee tribunal - years after the expiration of the US Sanctuary Movement - to confirm their view that Cherfi faced a well-founded fear of persecution in Algeria, notwithstanding a contrary finding by the Canadian refugee determination system: «Quelle ironie!», tonnait hier Gerald Dore, pasteur de l'eglise ou le sans- papiers avait trouve refuge avant son expulsion aux Etats-Unis. «I1 a fallu que ce soit un tribunal americain qui demontre que nous avons eu raison 1 Rft d'accueillir Mohamed dans cette eglise!»

4.4.6. The Contested Legality of Canadian Sanctuary Incidents

Though the Cherfi and Kazemian cases - the only two known instances where Canadian police have arrested migrants in sanctuary - do not necessarily indicate that sanctuary has become less successful in recent years, they do point to the fifth and final point that I would like to make regarding the strikingly successful Canadian sanctuary incidents: law plays a complex and contested role in Canadian sanctuary practices.

Cherfi's arrest and deportation generated significant public debate about the legal status of sanctuary practices, which to that point had not captured the public's

1 Rl attention. Judy Sgro, then Minister of Citizenship and Immigration, further fanned the flames of this controversy when, some months later, she called on churches to cease 1 RR providing sanctuary to unsuccessful refugee claimants. Sgro contended that sanctuary practices violated Canadian law, even going so far as to say that such violations of Canadian border control law posed serious threats to national security. Sgro put her

See e.g., Louise Boivin, "100 demonstrate for deported man" in The Montreal Gazette (7 March 2004) A5; Louise-Maude Soucy, "Le mouvement d'appui a Cherfi prend de l'ampleur" in Le Devoir (10 March 2004) A5; "Refugee Claimant's Supporters Demand his Return from U.S." in The Toronto Star (10 March 2004) A7; Bill Power, "Quebec Eviction Worries Halifax Woman" in The [Halifax] Chronicle-Herald (11 March 2004) Bl; Maxime Bergeron, "Les defenseurs de Cherfi exigent une enquete publique" in La Presse (11 March 2004) A6; Michel Vastel, "Ca s'est passe au Canada... et a Quebec" in Le Soleil (11 March 2004) A17; Peter McKnight, "Yes, the Violation of Sanctuary is a Big Deal" in The Vancouver Sun (22 March 2004) A8. I RR Jim Bronskill, "Sgro to urge churches to stop practice of harbouring refugee claimants" in The Globe & Mail (26 July 2004) A4. 1 RQ Ibid, ("the protection of our country and of Canadians has to be the Number 1 concern"). 244

rule of law critique of sanctuary in the following provocative terms: "Nobody is exempt from the law, no matter where you are." Many Canadians, as shown by letters to the editor,191 editorials,192 and calls to national radio call-in shows,1 3 concurred with Sgro's views.

Church groups, however, immediately responded to Sgro's comments by insisting that they would continue to offer sanctuary.194 Moreover, many sanctuary supporters contested Sgro's simple characterization of sanctuary as unlawful, and suggested that the matter was more complicated. In particular, many contended that churches intervene only in cases where the Canadian government is itself in danger of breaching international law. Not surprisingly, the churches argument in this regard tracked onto what I previously characterized as two major violations of Fuller's principles of legality in the border control setting: (1) Canadian refugee determinations appear to hinge, at least in

191 See e.g., Allan Perry, "Churches Should Butt Out", Letter to the Editor, in The Montreal Gazette (3 August 2004) A14; Steven Taylor, "Scrap Sanctuary", Letter to the Editor, in The Globe and Mail (11 August 2004) A12. 12 See e.g., Editorial Board, "Churches no place for refugee appeals" in The Edmonton Journal (27 July 2004) A12; James Bissett, "Forget churches: Reform the refugee system" in The National Post (28 July 2004) A19 ("The Minister is right, of course: Churches have no business meddling in areas where they have no expertise or jurisdiction"). 193 "Is Church Sanctuary Outdated", Cross Country Checkup, CBC Radio 1 (1 August 2004) (online: http://www.cbc.ca/checkup/archives04.html) (accessed: 17 June 2004) [Cross Country Checkup]: David: "Church sanctuary is more than outdated, it is flat out illegal... I'm outraged that my church... is looking at sanctuary as an option." John: "We have adopted a system of democratic government, and religious groups should not be above the law." Ian: "[Sanctuary] fundamentally attacks two of our basic concepts of how we govern ourselves. One is the rule of law, and the other is the separation of church and state. Conceptually, there's not very much of a difference between church sanctuary and vigilantes... Both involve people saying 'we're above the law, we'll make the decisions, and we'll take over from the democratic polity.' That undermines basically, democracy, rule of law and how we govern ourselves." 194 Jennifer Chen, "Churches will give refugees sanctuary until 'flawed' system fixed, leaders say" in The Ottawa Citizen (27 July 2004) D3; Nicholas Kohler, "Churches Want Dialogue With Sgro: Will continue to offer sanctuary to refugees" in The Montreal Gazette (27 July 2004). 195 See above, Chapter III, Sections 3.3.1 & 3.3.8. part, not on whether refugee claimants actually meet the refugee definition set out in Canadian law, but rather on the identity of the refugee adjudicator assigned to claims; and, (2) because of the government's failure to implement the Refugee Appeal Division, there is currently no mechanism to effectively correct false negative refugee determinations that result from inconsistent IRB adjudication, and that could lead to genuine refugees being deported to face persecution in violation of Canadian and international law. As the spokesperson for the United Church of Canada put it in the national media: "The only time a church will ever put itself in the awkward place of offering sanctuary to someone who requests it is because we understand that Canada ... is 1 Q7 not living up to its international obligations." Similarly, a press release prepared by an association of congregations providing sanctuary notes: "The real problem we want to address today is not sanctuary, but the flawed refugee determination system that fails to protect some refugees," said Archbishop Andrew Hutchison, Primate of the Anglican Church of Canada... [cjiting the lack of a merit-based appeal process in refugee determination... The United Nations High Commissioner for Refugees has criticized Canada's lack of an appeal process, stating that it is "a necessary element of international protection."

Other supporters of sanctuary, however, suggested that it is precisely because of their distance from Canadian state law that sanctuary practices are valuable and should be maintained. For example, in an op-ed piece in the National Post, Father Raymond de Souza states: The custom of sanctuary is a vestige of an era when the absolute power of the state needed trimming. Our legal system today offers many protections

b See e.g., Robert Fleury, "Le droit d'asile des refugies" in Le Soleil (29 July 2004) A15; Sean Rehaag, "No one is above the law on refugees" in The Toronto Star (30 July 2004) A19; Catherine Dauvergne, "Why Judy Sgro is just plain wrong" in The Globe & Mail (2 August 2004) All; Mitchell Goldberg, "Why Sanctuary is Necessary" in The Montreal Gazette (20 August 2004) A21. 197 Cited in Editorial Board, "Fix the System, Leave Churches Alone" in The Toronto Star (August 3 2004) A14. 198 KAIROS, "Refugees and Sanctuary in Canada: The Churches Respond", News Release (4 August 2004) (online: http://www.kairoscanada.Org/e/media/press/prRefugeesSanctuary040804.asp) (accessed: 5 November 2006). and safeguards, but it is always good to be reminded there are places where the state does not go and where it does not assert its sovereignty.199

Or, as a caller to a national call-in radio show put it: [Sanctuary] is the earliest form that we can really see of real civil disobedience. It's the beginnings of civil disobedience... and that tradition is the core of liberal democracy: the refusal of communities, small groups religiously affiliated or otherwise, to resist top-down applications of power... and to band together as communities and to offer protection irregardless of anything stated in the secular law. And to protect these people - essentially, to adopt these people into their communities... We will always need a civil disobedience tradition of mutual protection of individuals by their communities against the state...

When peaceful people stand up and break the law and prevent laws from being enforced, they almost always have very good reasons for doing so. And so the state should proceed very slowly... and look at its own processes to see what is causing this civil disobedience.

4.4.7. Three Narratives About Sanctuary & Law

Considering such comments, it is not surprising that Randy Lippert, in his systemic study of Canadian sanctuary incidents, concludes that law plays an important, albeit deeply controversial, role in debates regarding sanctuary. To assess how Canadian sanctuary providers understand the relation between sanctuary and law, Lippert draws on the work of critical legal scholars Patricia Ewick and Susan Silbey, who 907 identify three distinct narratives about how individuals interact with the law. Lippert 90^ then examines how sanctuary providers draw on each of these narratives.

In the first narrative, individuals are imagined to be "up against the law". That is to say, they experience the law as an oppressive force in their lives that must be resisted

Father Raymond de Souza, "No place left to hide: With the end of sanctuary, the state will be everywhere" in The National Post (27 July 2004). Cross Country Checkup, supra note 193 {Craig). Lippert, Sanctuary, supra note 62 at 141-164. ~ Patricia Ewick & Susan Silbey, Common Place of Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998), cited in Lippert, Sanctuary, supra note 62 at 141. Lippert, Sanctuary, supra note 62 at 141. through avoidance strategies because it is too powerful to be confronted directly.204 According to Lippert, sanctuary providers frequently deploy this narrative. More precisely, they often present sanctuary as an extra-legal means through which marginalized migrants may avoid coercive deportation that flows from what they consider to be arbitrary and oppressive immigration laws. From this perspective, sanctuary is a form of civil disobedience to purportedly unjust laws.205

In the second narrative, individuals are understood to be "before the 'higher' law." Here, "law" is not limited to mere positive state law. Instead, law is understood 907 to be a majestic and rational force that "stands outside and above social life." According to Lippert, sanctuary providers resort to this narrative when they claim that the official refugee determination system produces results that are not only unjust, but that also violate higher legal principles. Occasionally, the legal principles referred to are religious in nature - i.e. God's law, religious natural law, etc. More frequently, however, the claim is that deportation to face human rights violations is a breach of international law. According to this reasoning, where the official refugee determination system fails to protect individuals who will be subject to human rights violations on deportation, churches may legitimately take measures to prevent deportation. In these circumstances, it is the state authorities seeking to deport particular migrants - not the churches offering those migrants sanctuary - who are at risk of violating the law.

The third narrative involves individuals "playing... with the law". In this narrative, the law is imagined as a set of complex processes, each of which is fraught with error and subject to significant delay. Individuals encounter these processes and attempt to navigate them strategically and instrumentally. In other words, law is experienced as a kind of (high stakes) game. According to Lippert, sanctuary providers demonstrate such an understanding of law when they assert that sanctuary aims not to undermine the existing legal processes, but rather to delay deportation in order to provide

204 Ibid. 205 Ibid, at 143-150. 206 Ibid, at 150. 207 Ibid, at 141. 208 Ibid, at 150-154. 209 Ibid, at 141. migrants with extra time during which the legal processes can run their course. The hope is that migrants - with the expert assistance of legal counsel - will use this extra-time to successfully manipulate various legal processes to obtain more favourable outcomes.210

4.4.8. Sanctuary and Positive State Law

While Lippert offers evidence to substantiate his claim that sanctuary providers

9 I I deploy each of these three narratives, his discussion of the role of law in sanctuary omits what one would think to be a critical consideration: he does not offer an extended analysis of the relevant provisions of positive state law. In fact, although he repeatedly 9 1 9 asserts that sanctuary is illegal, on only one occasion - in an endnote - does he attempt to briefly articulate the basis of its illegality. Here is that explanation in full: Sanctuary is illegal under Canada's Immigration Act and Criminal Code because it involves aiding and abetting as well as conspiracy. Since at least 1976, the Immigration Act has prohibited aiding and abetting migrants subjected to deportation orders and has stipulated fines of up to 9 1 % CDN$5,000 and two years imprisonment.

914. 9 1 S 91 ft Now, to be fair, journalists, public officials, and even sanctuary providers do frequently contend, often without elaboration, that sanctuary practices violate Canadian positive law. Moreover, Lippert's analysis of the role of law in sanctuary incidents aims primarily at understanding how sanctuary providers use and discuss law, rather than at inquiring into the validity - from the perspective of positive state law - of

zw Ibid, at 154-162. 211 Ibid, at 143-162. 9 1 9 Ibid, at 146 & 150. See also, Randy Lippert, "Sanctuary Practices, Rationalities, and Sovereignities" (2004) 29 Alternatives 535 at 548; Randy Lippert, "Rethinking Sanctuary: The Canadian Context, 1983-2003" (2005) 39 International Migration Review 381 at 398. 9 I ^ Lippert, Sanctuary, supra note 62 at 146, n.24. 214 Block, "Sanctuary and the Defiant Churches" in Maclean's (30 January 1984) 43, cited in Lippert, Sanctuary, supra note 62 at 146, n.24. 215 Jim Bronskill, "Sanctuary is 'breaking the law': Government memo says churches wrong to harbour refugees facing deportation" The Toronto Star (7 March 2005) A13. 216 Lippert, Sanctuary, supra note 62 at 146, n.24 & 149. See also, United Church of Canada, supra note 163 at 6, 12 & 20-24; Presbyterian Church in Canada, supra note 166 at 8. such uses and discussions. As a result, his decision not to offer an in-depth analysis of positive state law may be understandable. For our purposes, however, closer attention to the relevant provisions of positive law that purport to render sanctuary illegal is warranted.

As the New Sanctuary Movement in the US demonstrates, there are two distinct questions to be asked regarding how positive state law may render sanctuary practices unlawful. The first relates to the lawfulness of migrants taking sanctuary, and the second relates to the lawfulness of churches providing sanctuary. Let us address each of these questions in turn.

4.4.9. The Legality of Taking Sanctuary

With respect to the legality of taking sanctuary, it must be recalled that migrants

71 Q only enter sanctuary when they are vulnerable to removal from Canada. In principle, then, migrants in sanctuary will usually be in violation of an enforceable removal 990 order. Section 48(2) of the Immigration and Refugee Protection Act [IRPA] states that: "If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable."221 Moreover, s.124, the IRPA's general offences provisions, makes the violation of s.48(2) an offence: "Every person commits an offence who...contravenes a provision of this Act...or fails to comply with a condition or obligation imposed under

This is a consequence the methodological approach Lippert adopts, that of "discourse analysis". Lippert, Sanctuary, supra note 62 at 10. 18 It is curious, however, that while Lippert does not discuss at length the positive law allegedly prohibiting sanctuary, he does provide sustained analyses of other areas of Canadian law. For instance, to help contextualize the sanctuary movement he offers a sophisticated discussion of the development of Canadian refugee law since World War II. Ibid, at 44-56. 19 This is built into the Lippert's definition of sanctuary. See text accompanying note 143. ~20 For details regarding when removal orders come into force, see IRPA, supra note 156, s.49. Further details regarding the functioning of removal orders are found in the regulations accompanying Canada's immigration legislation. Immigration and Refugee Protection Regulations, SOR/2002-227), ss.223-243. 221 IRPA, supra note 156, s.48(2). 777 this Act." The penalties for such offences include a possible fine of $50,000 and a term of imprisonment of up to two years.2 3

Of course, in order to commit an offence by remaining in Canada in breach of a removal order, the removal order in question must be legally valid. It is worth noting, however, that the validity of the removal order will frequently be contested in sanctuary incidents. Recall that most migrants in sanctuary are unsuccessful refugee claimants who contend that an error was made in their initial negative refugee determination. Moreover, the standard argument put forth is not only that was there an error committed during the initial refugee claim, but also that, due to systemic procedural flaws in the refugee determination system - most notably the lack of an appeal - the error cannot be corrected

974 through official channels. In such circumstances a removal order might be actually be invalid under positive state law for a variety of reasons, including breaches of 99 S 99' f\ international law that has become part of Canadian law, breaches of constitutional 997 998 law, or breaches of administrative law norms of procedural fairness.

222 Ibid.,s. 124(1). 223 Ibid., s. 125. 224 See above, Chapter III, Section 3.3.8. 99 S For example, there is an absolute prohibition in international law against removal to face torture. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 U.N.T.S. 85, Art.3. Where migrants in sanctuary will, as a matter of fact, face torture on return, notwithstanding a contrary erroneous finding by the refugee determination system, their deportation will violate international law. Similarly, under international refugee law, the prohibition on deportation to face persecution applies to all those who meet the refugee definition, not just those states recognize as meeting the refugee definition. James Hathaway, The Rights of Refugees Under International law (Cambridge: Cambridge University Press, 2005) at 158 (see especially n.17). As a result, deporting a person who meets the refugee definition, but who was not recognized as such because of errors during the refugee determination process constitutes a breach of international refugee law. Canada's immigration legislation, for instance, contains an interpretive clause that requires that the legislation be applied and interpreted in compliance with Canada's international legal obligations. IRPA, supra note 156, s.3(3)f. 997 For example, deportation in circumstance where a person alleges that they face a risk of persecution has been held to implicate the constitutional right to life, liberty and the security of the person. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. Similarly, the international legal prohibition of return to torture has arguably become incorporated into of Canadian constitutional law. At the very least Canadian courts must give weight to this prohibition when interpreting the constitution. Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3. Lippert hints at such a possibility when he notes that sanctuary providers adopting the "before the (higher) law" narrative frequently make reference to international human 990 rights law. It is important to keep in mind, however, that assertions about the invalidity of a removal order need not take the form of a "higher" law argument. That is to say, the contention is not necessarily that when a removal order complies with state-based immigration law but breaches international refugee law, the latter (representing higher law) should trump the former. That would be a scenario of conflict of law between two distinct legal orders. Rather, the argument may simply be that the removal order is invalid under domestic law - possibly, but not necessarily, by virtue of the incorporation of international law into domestic law. This is not a conflict of law scenario, but rather a straightforward question of legal validity from the perspective of a single (state-based) legal order.

Now, while migrants in sanctuary may contend that their removal orders are invalid due to various breaches of positive Canadian law, and thus, that they themselves are not breaking Canadian law by remaining in the country, it remains highly unlikely that such arguments would be persuasive in court. Indeed, those in sanctuary have generally already exhausted all avenues for judicially reviewing their negative refugee determination as well as the subsequent immigration procedures culminating in their 9 if) removal order. Any available arguments regarding the legal invalidity of those procedures have, therefore, presumably already been rejected by courts by the time 231 migrants enter sanctuary.

Courts have held that administrative decisions that have serious impacts on people's lives are subject to heightened norms of procedural fairness. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. See text accompanying notes 206-208, above. 230 Indeed, guidelines prepared by the national bodies of several denominations specifically suggest that congregations determine whether those seeking sanctuary have in fact exhausted the available administrative and legal recourses prior to granting sanctuary. United Church of Canada, supra note 163 at 7; Presbyterian Church in Canada, supra note 166 at 12. 9"> i The rules regarding judicial review, however, complicate the matter. On the one hand, it is possible to apply to the Federal Court for leave to judicially review virtually any decision made by immigration officials. IRPA, supra note 156, s.72-74. In most cases, removal orders are stayed while judicial review is under consideration. Ibid., s.50; IRPA To say that courts are unlikely to accept arguments regarding the invalidity of removal orders pertaining to particular migrants in sanctuary, however, does not mean that such arguments are unimportant to sanctuary practices. To the contrary, it is precisely in order to ensure that migrants can reasonably make such arguments that the church guidelines discussed above suggest that congregations only provide sanctuary to migrants who demonstrate that they qualify for refugee protection under Canadian positive law, notwithstanding contrary findings in the official refugee determination

9^9 system. In other words, one of the reasons congregations contemplating an offer of sanctuary resort to sophisticated screening mechanisms is to ensure that sanctuary can be justified on a rule of law basis (i.e. on the basis that the state itself has misapplied and misinterpreted positive state law in particular cases). Indeed, this helps to explain why sanctuary providers place so much focus on systemic procedural flaws in the refugee determination system, and, in particular, on the argument that misinterpretations and misapplications of positive law in particular cases cannot currently be corrected because of the lack of an effective appeal mechanism. What this shows is that sanctuary is partly about individuals insisting that state institutions, including courts, do not have the final word on the interpretation of positive state law. Sanctuary practices, it would thus appear, are at least in part premised on the notion that even the highest and most authoritative state institutions can - and sometimes do - get the law wrong.

Regs., supra note 220, s.230-233. In other words, in principle, migrants facing removal have legal forums in which to contest the legal validity of both their refugee determinations and their removal orders. On the other hand, however, the opportunities to challenge the legal validity of decisions made by in the immigration and refugee law setting are more restricted than in other areas of law. In particular, the Federal Court must grant leave for judicial review in most immigration and refugee matters. 1RPA, supra note 156, s.72(l). As we saw in Chapter III, leave is infrequently granted. See Chapter III, note 94 (and accompanying text). Moreover, Federal Court first instance decisions relating to judicial review in immigration and refugee matters cannot themselves be appealed unless the judge at first instance certifies that a "serious question of general importance" is raised in the case. IRPA, supra note 156, s.74(d). In other words, the Federal Court judge issuing a decision must grant permission to the parties to appeal that decision, a curious procedure which places obvious limits on the ability of parties to challenge the legal validity of first instance Federal Court decisions in the immigration and refugee law field. 2"?2 See text accompanying notes 165-166. TIT See text accompanying notes 196-198. Ronald Dworkin has articulated an understanding of legal interpretation that fits closely with such a view of sanctuary practices. 4 According to Dworkin individuals (although he problematically uses the term "citizens") who are subject to a legal norm are ultimately responsible for interpreting the meaning of that norm.235 This responsibility is especially significant where, as in most contemporary states, the "constitution makes...conventional political morality relevant to the question of validity."236 In such circumstances, according to Dworkin, A citizen's allegiance is to the law, not to any particular person's view of what the law is, and he [sic] does not behave unfairly so long as he proceeds on his own considered and reasonable view of what the law 237 requires. It is essential to note here, that Dworkin is not saying that individuals may simply adopt their own preferred course of action and disregard legal norms that emerge from legislative, judicial or executive branches of state-based government. Rather, he asserts merely that each of these institutions occasionally make errors in articulating, interpreting and applying legal norms. To substantiate this assertion he notes that courts not only frequently invalidate legislative enactments and executive actions, but they also often overturn lower court decisions, and occasionally even reverse previous decisions at similar levels. Because of the possibility of such reversals, according to Dworkin, We cannot assume, in other words, that the [law] is always what the Supreme Court says it is... Let me repeat (because it is crucial) that is not the same as saying an individual may disregard what the courts have said. The doctrine of precedent lies near the core of our legal system, and no one can make a reasonable effort to follow the law unless he grants the courts the general power to alter it by their decisions. But if the issue is one touching fundamental personal or political rights, and it is arguable that the Supreme Court has made a mistake, a man is within his social Tin rights in refusing to accept that decision as conclusive.

234 R. Dworkin, Taking Rights Seriously (Boston: Harvard U.P., 1978) at 206-216. Ibid. 236 Ibid, at 208. 237 Ibid, at 214. 238 Ibid, at 211. 239 Ibid, at 211 &214. Dworkin's analysis here is useful, because it offers us a way to understand Canadian sanctuary screening mechanisms. On this understanding, church groups are in a position to plausibly argue that deportation orders against those in sanctuary are themselves unlawful under state law, notwithstanding contrary findings by courts, because: (1) as the Supreme Court held in Singh v. Canada,240 refugee determinations engage fundamental constitutional rights; (2) there is evidence that procedural flaws in the official refugee determinations lead to erroneous and uncorrectable outcomes; and, (3) church groups screen applicants for sanctuary to ensure that sanctuary is only provided to those whose refugee claims were improperly denied due to the procedural flaws in the official refugee determination system.

Taken together, then, in the event that migrants in sanctuary are charged with violations of Canadian immigration law, and in particular with remaining in Canada in contravention of a removal order in violation of s.48(2) of the IRPA, I acknowledge that Canadian courts are likely to dismiss arguments that the underlying removal order is itself invalid under domestic law. However, arguments regarding the legal invalidity of removal orders (as well as the underlying negative refugee determinations) under domestic positive law remain essential to Canadian sanctuary practices.

4.4.10. The Legality of Providing Sanctuary

With respect to the second question, whether churches that provide sanctuary violate Canadian positive law, the matter is - if anything - less clear.

One possible basis for the purported illegality of providing sanctuary is related to criminal offence of wilful obstruction. According to section 129 of the Criminal Code: Every one who... resists or wilfully obstructs a public officer or peace officer in the execution of his duty... is guilty of... an indictable offence and is liable to imprisonment for a term not exceeding two years.

v Singh v. Canada, [1985] 1 S.C.R. 177. 1 Criminal Code, R.S.C. 1985, c. C-46, s.129. As a result, if sanctuary providers attempt to prevent police officers from enforcing a valid removal order against a person in sanctuary, then they are in principle guilty of wilful obstruction. It is important to understand, however, that merely offering sanctuary should not, on its own, constitute wilful obstruction. Simply put, there is no impediment under Canadian positive law preventing police officers from entering churches and effecting arrests. Police officers are, in other words, not obstructed in the execution of their duties by the mere fact that a person they seek to arrest is physically located in a church. Moreover, sanctuary providers are generally uninterested in taking any additional steps that actually would obstruct police officers, by for example physically preventing the police from entering a church. The following comments by a sanctuary provider are typical in this regard: The decision was made right from the outset that this church would never be locked so that the authorities could never say that they were stopped from coming into the church. And we went on public record...that the church was always open and we were not going to stand in the way of the law.242

Other sanctuary providers echoed such an approach:

We called the immigration people and said, "If you want to come in at any time, we will show you around..." If Immigration decided that they wanted to come pick [the person in sanctuary] up, they [can] just tell us. We'll hold the door [open]... We aren't going to stand in the way of an actual apprehension, but we are also going to grant her sanctuary."243

So long as sanctuary providers adopt this approach and refrain from taking measures that actually hinder police officers from executing their duties, then it is difficult to see how sanctuary providers engage in wilful obstruction merely by offering sanctuary to migrants subject to valid removal orders.

Although providing sanctuary, in itself, does not appear fall afoul criminal law provisions on wilful obstruction, there are other legal provisions that arguably render sanctuary unlawful. In particular, section 131 of the IRPA, under the heading "Proceeds of Crime", states:

Lippert, Sanctuary, supra note 62 at 146. Ibid, (emphasis added). 131. Every person who knowingly... aid or abets... person to contravene section... 124, or who counsels a person to do so, commits and an offence and is liable to the same penalty as that person.

Similarly, the Criminal Code states: 21. (1) Every one is a party to an offence who... does or omits to do anything for the purpose of aiding any person to commit it... or abets any person in committing it...

22. (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence.. .245

As we have seen, migrants in sanctuary arguably commit an indictable offence under section 124 of the IRPA by remaining in Canada in violation valid removal order. Thus, to the extent that sanctuary providers (1) counsel, (2) aid, or (3) abet the commission of that offence, the IRPA and the Criminal Code render sanctuary providers liable to the same punishment as the migrants themselves: up to 2 years in jail and a $50,000 fine.247

Let us deal with counselling first. The Supreme Court has recently interpreted counselling an offence to mean "deliberate encouragement or active inducement of the commission of a[n]... offence". The Court has also noted that the types of behaviour covered by counselling include: advising, recommending, procuring, bringing about, soliciting, asking repeatedly for, seeking, inviting, making a request, petitioning, urging, instigating, or persuading. Now, it must be admitted that some sanctuary providers likely do counsel particular individuals to enter sanctuary and remain in Canada in violation of a valid removal order. Where they do so, they are guilty of counselling the commission of an offence. Where, however, migrants take the initiative and decide to remain in Canada (whether in sanctuary or otherwise) in violation of a valid removal order without being deliberately encouraged or actively induced to do so, then sanctuary

244 IRPA, supra note 156, s. 131. Criminal Code, supra note 241. 246 See text accompanying notes 219-223. 247 IRPA, supra note 156, s.l24(l)(a). 248 R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432 at |29. 249 Ibid, at 1)21-23 257 providers cannot be said to have counselled the commission of an offence. In other words, merely providing sanctuary does not necessarily entail counselling the commission of an offence. Rather, whether sanctuary providers engaging in counselling the commission of an offence is a contingent, factually dependent matter.

One factually contingent scenario is worth flagging here: the criminal law provisions on counselling place immigration and refugee lawyers in a rather difficult position vis-a-vis sanctuary. In particular, lawyers may be aware that in particular cases the course of action most likely to lead clients to a successful outcome (i.e. obtaining Canadian Permanent Residence) is to resort to sanctuary and thus to remain in Canada in violation of a removal order. Recommending this course of action, however, would expose lawyers not only to criminal liability under the counselling an offence provision, but also to professional disciplinary measures.25 Interestingly, sanctuary providers apparently go to some lengths in order to minimize the exposure of lawyers to such liabilities. As one sanctuary provider put it: Well, the lawyers... can't counsel somebody to do something illegal...What they do is they say: "Now go and see M and just tell her I said you should go." They just send them over, and then I say, "Well why did they send you?" [And they say,] "Well, I'm getting deported." I mean

See e.g. Law Society of Upper Canada Rules of Professional Conduct, Rule 4.01(1) ("When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law"); Code de deontologie des avocats, R.Q. c. B-l, r.l, s.2.01. ("L'avocat doit soutenir le respect de la loi. II ne doit pas prononcer des paroles ou publier des ecrits contraires aux lois, ni inciter quiconque a y porter atteinte"). Immigration Consultants face similar constraints. Canadian Society of Immigration Consultants, Rules of Professional Conduct, Rule 4.2: When advising a Client, an Immigration Consultant must exercise due care and must never knowingly assist in or encourage any dishonesty, provision of misleading information, omission of any required relevant information, fraud, crime or illegal conduct, or instruct the Client on how to violate the law and avoid punishment. Of course, this is only one manifestation of a more general problem of professional ethics that immigration lawyers and consultants face on a daily basis. This problem is a direct result of one of the major routes into Canadian Permanent Residence: applications to regularize the status of individuals who are unlawfully present in the country. These applications take several years to be processed, during which time the person must remain in Canada in violation of immigration law. Lawyers and consultants who recommend this common course of action, like lawyers and consultants who recommend that people resort to sanctuary, may theoretically be exposing themselves to criminal liability for counselling an offence, as well as to other professional disciplinary actions. they [i.e. lawyers] have to cover themselves but they send them [i.e. migrants] over.251

The next possible grounds for the purported illegality of providing sanctuary that I would like to consider are the immigration law and criminal law provisions on aiding and abetting. According to documents obtained through a formal Access to Information Request, these provisions are at the heart of the legal theory according to which Canadian government officials apparently feel that sanctuary providers violate Canadian law. As a document entitled "Avoiding Deportation by Claiming Sanctuary", prepared by the Department of Citizenship and Immigration Canada (CIC) puts it: It is an offence pursuant to IRPA to aid and abet a person to contravene the Immigration and Refugee Protection Act. In practice prosecution is discretionary and therefore churches which actively assist persons in evading removal have, to date not faced charges.

Similarly, a second document entitled "Sanctuary in Churches", also prepared by CIC, states:

Its [sic] is an offence pursuant to IRPA (A141 by A124)to aid and abet a person to contravene the Immigration and Refugee Protection Act.254

In what sense, then, might providing sanctuary constitute aiding and abetting the offence of remaining in Canada in violation of a removal order? Because no sanctuary providers in Canada have ever been charged under these provisions, there is no case law to assist us in interpreting the provisions in this specific context. However, even setting aside the arguments regarding the validity of the underlying removal orders in sanctuary cases, it is not obvious that Canadian sanctuary providers are in fact aiding and abetting the commission of an offence.

" Lippert, Sanctuary, supra note 62 at 159-60. 252 Anita Anderson [CIC Senior Public Rights Administrator], Personal Correspondence dated 8 June 2005, CIC File#: A-2004-02972/aa (on file with author) [CIC, Access to Info.]. Note that the vast majority of the documents received were redacted on the basis of various national security and international affairs exemptions from the Access to Information Act. See Ibid, at 1. 253 Ibid, at 000041: 254 Ibid, at 000114. In examining whether sanctuary providers engage in aiding and abetting, the first step is to notice that while the terms aiding and abetting are often used in tandem, they do, in fact, represent distinct offences. As Justice Cory put it in R. v. Greyeyes: The terms "aiding" and "abetting" are often used together in the context of determining whether persons are parties to an offence. Although the meanings of these terms are similar, they are separate concepts... To aid... means to assist or help the actor... To abet... includes encouraging, instigating, promoting or procuring the crime to be committed.255

Let us, therefore, consider "aiding" and "abetting" separately.

With respect to "aiding", it is important to recall the distinction we saw between "concealment" and "exposure" strategies in sanctuary practices.256 Where "a church conceals a person who is subject to a valid removal order so as to avoid their detection by authorities, it seems clear that they are engaged in the offence of "aiding". However, where churches publicly declare that they are providing sanctuary to a particular migrant, adding that they will not take any steps to resist official enforcement activities,257 then it is not clear how they are "aiding" the migrant to commit the offence of remaining in Canada in violation of a valid removal order. It is worth reiterating here that, by virtue of British legislation repealing all recognition of sanctuary as a matter of positive secular law in 1624, the fact that migrants may be located inside churches in no way diminishes the legal authority of Canadian police or immigration officials to enforce removal orders against them. If authorities choose not to enforce removal orders against migrants they know to be taking sanctuary inside churches, that decision is purely political (i.e. the government wishes to avoid the negative political reaction that media accounts of the use of police force inside a church inevitably engenders). Merely increasing the political cost of enforcing state law should not be interpreted to constitute

255 [1997] 2 S.C.R. 825 at ]J 26 (per Cory J). 256 See text accompanying notes 140-143. 257 See text accompanying note 242-243 ("The decision was made right from the outset that this church would never be locked.. .we went on the public record.. .that the church was always open and we were not going to stand in the way of the law") & ("If Immigration decided that they wanted to come pick [the person in sanctuary] up, they [can] just tell us. We'll hold the door [open]... We aren't going to stand in the way of an actual apprehension, but we are also going to grant her sanctuary"). See text accompanying note 53-56. "aiding", otherwise anyone who seeks to bring public attention to unpopular enforcement measures would be guilty of "aiding" the commission of an offence.

One other sense in which sanctuary providers might be said to commit the offence of "aiding" is by sheltering, feeding, and providing other services to individuals in sanctuary. This reasoning would run as follows: when a person knowingly assists a migrant subject to a removal order by providing them with food, shelter, or other services, they facilitate that migrant's ongoing violation of the removal order (i.e. their remaining in Canada).

There are, however, two problems with such reasoning. The first is that Canadian legislation does not explicitly prohibit "harbouring" individuals who are unlawfully present in Canada. As we have already seen, the equivalent American legislation, in contrast, prohibits not only "aiding" but also "harboring" aliens not lawfully entitled to enter or remain in the country. Indeed, several sanctuary providers who were charged during the US Sanctuary Movement in the 1980s were convicted of harbouring aliens unlawfully present in the US. Moreover, as in the US, harbouring is recognized as distinct from "aiding" in several Canadian criminal law provisions. For example,

969 although the Canadian Criminal Code contains general provisions on "aiding", it also explicitly criminalizes "harbouring" those who commit specific crimes, including terrorist related offences: Every one who knowingly harbours or conceals any person whom he or she knows to be a person who has carried out or is likely to carry out a terrorist activity, for the purpose of enabling the person to facilitate or carry out any terrorist activity, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. Similarly, the human trafficking provision in Canada's immigration legislation explicitly refers to "the receipt or harbouring" of persons brought to Canada "by means of

259 18 USCS §2. 2608U.S.C. §1324. 96 I Agnilar, supra note 94 at 667. Criminal Code, supra note 241, s.21(l)(b) & (c). 263 Ibid., s.83.23. abduction, fraud, deception or use or threat of force or coercion." No other Canadian immigration provision includes a reference to "harbouring". There is, therefore, a distinction between "aiding" and "harbouring" under Canadian law. Because Canadian law - unlike US law - does not explicitly prohibit harbouring migrants who are unlawfully present in the country, in my view, merely providing shelter, food and other services to such migrants should not be considered "aiding" the commission of an offence.

Another reason why "aiding" should not be interpreted to cover providing food, shelter and other services to migrants subject to a valid removal order is that such an interpretation would cast the net far too widely. Indeed, such an interpretation would criminalize the work of organizations that run shelters for women without status who are victims of domestic violence, legal clinics that offer services to help undocumented migrants regularize their immigration status, schools that educate children who are not lawfully in the country, hospitals that provide emergency medical treatment for individuals without status, and even police services with "Don't Ask, Don't Tell" policies regarding immigration status. Admittedly, such organizations could be said to providing migrants unlawfully present in Canada with key services necessary for them to maintain a life in the country, and thus could, in principle, be covered by the broadest possible reading of the provisions on "aiding". However, if Parliament intended to so broadly criminalize humanitarian assistance to migrants who are in the country in contravention of immigration law, surely they would have done so explicitly.265

264 IRPA, supra note 156, s. 118. In doing so they would be following in the footsteps of the US House of Representatives, which recently tried - and failed - to criminalize all humanitarian assistance to unlawfully present aliens. U.S., Bill H.R.4437, Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, 109th Congress, 2005, s.202: Whoever... assists, encourages, directs, or induces a person to reside in or remain in the United States, or to attempt to reside in or remain in the United States, knowing or in reckless disregard of the fact that such person is an alien who lacks lawful authority to reside in or remain in the United States... where the offense was not committed for commercial advantage, profit, or private financial gain, [shall] be imprisoned for not more than 5 years. This Bill was subsequently defeated in the Senate in 2006. Rather than adopting what is in my view an overly broad understanding of "aiding", a more reasonable approach would be to restrict "aiding" in this context to scenarios where the accused materially assists migrants to avoid detection or otherwise materially interferes with the enforcement of a valid removal order. In applying this restricted understanding of "aiding", churches that merely publicly offer sanctuary in order to enhance the political cost of associated with deportation measures would not be understood as assisting migrants avoid detection. As a result, so long as churches offering sanctuary do not take other measures to interfere with the enforcement of removal orders, they would, therefore, not be engaged in the offence of aiding - a matter of particular note, given that, as we have seen, churches offering sanctuary generally assert in advance that they will not actually interfere with law enforcement activities. 6 In my view, then, to the extent that sanctuary providers engage solely in exposure strategies, they should not be understood to be "aiding" the commission of the offence committed by migrants who remain in Canada in violation of a valid removal order.

So much for "aiding", but what about "abetting"? Abetting in Canadian law is similar to the Criminal law provisions on counselling an offence, in that abetting involves encouraging someone to commit an offence. As Justice Cory put it in R. v. Greyeyes, the Criminal Code provides that any person who abets any person in committing an offence is a party to that offence. In order to secure a conviction, the Crown must prove not only that the accused encouraged the principal with his or her words or acts, but also that the accused intended to do so.

See text accompanying note 242-243 ("The decision was made right from the outset that this church would never be locked...we went on the public record.. .that the church was always open and we were not going to stand in the way of the law") & ("If Immigration decided that they wanted to come pick [the person in sanctuary] up, they [can] just tell us. We'll hold the door [open]... We aren't going to stand in the way of an actual apprehension, but we are also going to grant her sanctuary"). 267 It is worth noting that according to Lippert, in Canada sanctuary providers sometimes resort initially to concealment strategies, and only later to exposure strategies. Lippert, Sanctuary, supra note 62 at 15-16. In such circumstances they are much more likely to be in breach of Canadian law. 268 R. v. Greyeyes, [1997] 2 S.C.R. 825 at 138. Similarly, in a frequently cited passage, the Alberta Supreme Court explains that, to secure a conviction on the charge of abetting, the accused must intend that the words or acts will encourage the principal. The criminal law is concerned with acts or words that are done or uttered with the intent or for the purpose of counselling, encouraging, instigating or promoting the commission of the acts by the principal actor. Accordingly before an accused person can be convicted the Crown must prove, beyond a reasonable doubt, both the words of encouragement and the intention of the appellant to so encourage.

In other words, the key to evaluating whether sanctuary providers engage in abetting turns on (1) whether the accused encouraged or instigated the commission of the principal offence (i.e. the migrant remaining in Canada in violation of a valid removal order), and, if so, (2) whether the accused intended to so encourage or instigate the commission of the principal offence.

As with my discussion of "counselling" above, whether sanctuary providers engage in abetting is a factually contingent matter. Some sanctuary providers likely do encourage migrants to remain in Canada in violation of a valid removal order. It other cases, however, migrants requesting sanctuary fully intend to remain in the country in violation of the removal order regardless of whether they succeed in obtaining sanctuary from a particular church community. If they are unable to obtain sanctuary, they will remain underground and try to avoid being detected by immigration authorities. If, on the other hand, they succeed in obtaining sanctuary they will publicly move into the church and hope that the state chooses not to enforce their removal order. In such circumstances, it is unclear in what sense church communities that accede to requests for sanctuary can be said to "encourage" the commission of the principal offence of remaining in Canada in violation of a removal order.

Moreover, as with a broad interpretation of "aiding", there is a serious danger in adopting an expansive reading of "abetting" that would cover the kind of moral and political support that church communities offer migrants in sanctuary. Merely offering moral and political support to people who violate a valid law - rather than encouraging

269 R. v. Curran, [1978] 1 W.W.R. 255, 7 A.R. 295, 38 C.C.C. (2d) 151 (Alberta Supreme Court, Appellate Division) (emphasis added). them to break the law - should not constitute "abetting" lest the net once again be too widely cast. In fact, an expansive interpretation of "abetting" would catch a significant number of influential public officials and community leaders, who regularly provide political assistance to migrants who are in Canada in violation of valid removal orders. Indeed, several sitting Members of Parliament have offered political support to migrants in sanctuary, and would thus be vulnerable to prosecution under an excessively expansive understanding of "abetting".270

In my view, the best interpretation of "abetting" in the context of church sanctuary incidents is a restricted reading that would cover only circumstances where sanctuary providers actively encourage migrants to remain in Canada in violation of a removal order. Whether particular sanctuary providers in fact do so encourage migrants is a factually contingent matter. What is important for our purposes, however, is that the mere accession to a request for sanctuary by a migrant should not, on its own, be understood to constitute "abetting".

4.4.11. Canadian Sanctuary Practices & the Rule of Law

All of this to say, then, that those - like former Minister of Citizenship and Immigration, Judy Sgro - who assert that Canadian sanctuary practices violate the rule of law, are in a bit of a tricky position. On the one hand, it must be acknowledged that if state authorities decline to enter churches to enforce deportation orders against individuals taking sanctuary, then the result will be a breach of the principle that the law should be enforced as it is announced (i.e. Fuller's eighth principle of legality). On the other hand, however, powerful countervailing rule of law arguments become evident if one pays sufficient attention to the multifaceted legal claims at play in Canadian sanctuary incidents. In particular, sanctuary providers take strenuous steps to ensure that sanctuary is only offered to those who can plausibly argue that the deportation order

270 B. Campion-Smith, "Refugees 'freed' from church havens" in The Toronto Star (15 Dec 2004) A2; E. Salinas, "His church - another version of prison" in The Globe & Mail (17 Jun 2006) SI; "Rallies held to protest man's deportation to India" in The Globe & Mail (18 Aug 2007) S2; J. Armstrong, "Ottawa grants refugee claimant 60-days" in The Globe & Mail (20 Aug 2007) A5. 271 See above, note 190 (and accompanying text). against them is itself in violation of Canadian and international law. That is to say, sanctuary providers screen individuals to ensure that, notwithstanding a contrary finding in the official refugee determination system, they do, in fact, meet the international and Canadian refugee definitions. This enables sanctuary providers to argue that deporting such individuals would violate their right to non-refoulement recognized under both Canadian and international law. To be sure, it is unlikely that these arguments would be officially sanctioned within the state based legal order. However, these arguments nonetheless remain plausible, particularly in light of what sanctuary providers argue are serious and systematic procedural flaws in the official refugee determination system, including inconsistent refugee adjudication and the lack of an effective appeal mechanism. Moreover, these arguments, at the end of the day, are surprisingly effective, in that sanctuary receives a great deal of public support, and ultimately usually results in the migrant in question obtaining Canadian Permanent Residence. In effect, then, the way that Sanctuary providers screen those who request sanctuary allows them to make a case that sanctuary practices actually uphold, rather than breach, the rule of law. At the same time, as we have seen, churches publicly providing sanctuary can also plausibly argue that sanctuary practices do not necessarily violate positive Canadian law.

In the end, while there is admittedly room for disagreement regarding the legal status of Canadian sanctuary practices under positive state law, what is certain is that such practices involve a fascinating set of legal claims. In particular, sanctuary practices raise competing jurisdictional claims between multiple partly overlapping legal systems. They also involve differing interpretations about how those multiple legal systems intersect, and what to do in the event of conflict - although I hasten to add that one should not be too quick to presume that there are necessarily conflicts, as my discussion of the Canadian criminal law provisions demonstrates. Sanctuary practices also raise questions about who has the final word on interpreting and applying legal norms within particular legal systems, whether state institutions or those who are subject to them.

What I want to emphasize in all of this is that assessing the claims and questions raised by sanctuary practices requires close attention not just to the broad political arguments, not just, that is to say, to how sanctuary is discussed and debated. Rather, close attention must also be paid to norms found in the multiple legal systems that purport to govern these conflicts, including precise provisions of positive state law, as well as to the relation between these norms and the principles of legality identified by Lon Fuller.

4.5. Conclusion

Despite its formal abolishment as a matter of state law in the 16th and 17th centuries, church sanctuary continues to be practiced in the contemporary era, as shown by the US Sanctuary Movement of the 1980s, the New US Sanctuary Movement that has just begun in the United States, and the ongoing sanctuary incidents in Canada. These practices have been surprisingly effective, not just in terms of preventing the deportation of individual migrants and in securing their legal immigration status, but also in terms of contributing to broad public debates regarding policy changes to state based refugee determination systems.

As I have emphasized in this Chapter, law plays a complex and controversial role in contemporary sanctuary practices. While public debates about the legitimacy of church sanctuary frequently turn on the issue of whether sanctuary is a justifiable form of civil disobedience to purportedly unjust laws, framing sanctuary in such terms is problematic on several levels. In particular, sanctuary providers may plausibly argue that sanctuary practices, in fact, do not violate state law, but rather actually serve to protect and enhance the rule of law. On such a view, sanctuary practices cannot accurately be characterized as civil disobedience.

There are two distinct senses in which we can understand these arguments. The first relates to whether the state is acting lawfully in seeking to deport particular migrants, a question that is particularly relevant when those seeking sanctuary allege they face a risk of persecution abroad. Where such allegations of feared persecution seem credible, advocates of church sanctuary can reasonably assert that deporting the migrants in question would violate both international and domestic refugee law. Sanctuary practices discouraging such unlawful deportations, this argument runs, can actually enhance the rule of law. Arguments to this effect put forward by sanctuary providers usually involve procedural rather than substantive complaints about the refugee determination system. That is to say, sanctuary advocates suggest that due to systemic procedural flaws in the refugee determination system, including the politicization of refugee determinations, inconsistent refugee adjudication, or the lack of effective appeal mechanisms to correct false negative determinations, many who do in fact qualify for refugee protection are not official recognized as such. Churches then suggest that it only because of these procedural flaws that they must step in to prevent the unlawful deportations of genuine refugees. In order to be in a position to persuasively make such assertions, churches are sometimes placed in the curious position of mimicking the decision-making processes mandated by state law - albeit modified to compensate for the procedural flaws - in order to determine whether those seeking sanctuary do, in principle, qualify for refugee protection.

The second sense in which sanctuary providers may claim that they do not breach state law concedes that migrants who take sanctuary do violate immigration laws. Despite this concession, churches nonetheless contend providing sanctuary is not necessarily unlawful because so long as sanctuary providers do not conceal migrants they do not materially interfere with the enforcement of state immigration law. On this view, although the state generally chooses not to undertake deportation measures within church buildings in order to avoid the political repercussions that such measures would have, it remains the case that churches offering sanctuary do not impede these deportation measures in a manner cognizable by state law. Of course, where sanctuary practices involve concealing migrants from detection by immigration officials - as with the US Sanctuary Movement in the 1980s - such reasoning would not apply.

The issue of the legality of sanctuary practices under state law, however, is not the end of the matter. Regardless of whether sanctuary is legal within the state legal system, one may still ask whether such practices are lawful within other legal orders, including in various forms of religious law. With respect to Catholic churches, for example, we have seen that canon law provisions explicitly authorizing church sanctuary were removed from the Code of Canon Law in 1983. However, the practice was nonetheless not explicitly prohibited. Moreover, when church sanctuary was explicitly authorized under prior canon law, it involved a combination of intercession by religious authorities within the secular legal system on behalf of fugitives facing alleged injustice, and the temporary suspension of the enforcement of state law against such individuals while they remain within church buildings, a suspension that provided time for the intercession to proceed. This is precisely what occurs in both Canadian sanctuary incidents and in the New US Sanctuary Movement. In each case, migrants subject to what they claim to be unjust (and sometimes arguably illegal) deportation move openly into a church, where secular authorities are loath to interfere. Church communities then use this temporary reprieve from deportation to bring political pressure to bear on secular authorities to secure a long- term solution - and, at least in the Canadian case, they are usually successful.

The connection between sanctuary as it was historically understood in canon law, and the US Sanctuary Movement of the 1980s is somewhat more tenuous. While churches involved in this Movement sought to change official state policy towards Central American asylum seekers, their day-to-day practices - particularly the transportation of migrants to large urban centres where they could avoid detection by authorities - cannot easily be understood as involving either intercession or the temporary suspension state law enforcement activities due to the inviolability of church buildings. One would need to be cautious, however, about concluding on this basis that the US Sanctuary Movement was not authorized within ecclesiastic legal orders. Not only do legal institutions evolve over time, but also most of the denominations involved in the movement were not Catholic, and thus may have different legal understandings of sanctuary. Moreover, the organizations involved in the US Sanctuary Movement in the 1980s extended far beyond church groups, and included universities, cities, and even states. It is thus perhaps not surprising that those involved in the Movement placed more emphasis on justifying their actions with respect to international law - especially international refugee law - than with respect to different forms of ecclesiastic law.

All of this to say, then, that contemporary sanctuary practices in North America are curious and complex legal phenomena, involving multiple legal orders (e.g. state law, religious law, international law). What is important for our purposes is that these practices show one possible avenue through which non-state legal orders can successfully contest the legal validity as well as the legality (in the Fullerian sense of the term) of decisions made by state legal orders in the migration setting. In particular, where legal pathologies and strains on legality emerge as a result of unilateral projections of state power onto migrants - that is to say, where border control involves the sorts of systemic procedural irregularities discussed in Chapter III272 - other legal orders, including faith- based communities, may intervene. Such non-state interventions can have two objects: (1) highlighting the legal pathologies in question, and thereby encouraging public debate regarding policy change that would bring the state-based legal system into compliance with the principles of legality; and, (2) offering viable temporary alternative legal institutions in the interim that avoid or circumvent the complained of legal pathologies. With respect to this second possibility, arguably the most applicable example would be the Canadian church sanctuary practices reviewed in this Chapter, which establish what effectively amounts to a de facto refugee determination appeal mechanism.

In my view, this intriguing picture of contested legal claims running through the sanctuary practices reviewed in this Chapter offer more than just a promising strategy for non-state institutions seeking to encourage major migration destination states to respect the principles of legality vis-a-vis non-citizens. In fact, as I will now argue in my concluding Chapter, they offer a model for challenging the exceptional understandings of border control held by many prominent liberal theorists as a result of what I called in Chapter I the two-step of liberal philosophy.

- See Chapter III, Sections 3.3.1-3.3.9.

CHAPTER V: CONCLUSION

Home is not a place, but a process.

- C. Queen1

5.1. Introduction

I began this dissertation with a provocative question posed by Joseph Carens regarding the legitimacy of measures taken to prevent unwanted immigration in liberal democratic states. Here is that question again: Most of the people trying to get [into liberal democratic states] are... ordinary, peaceful people, seeking only the opportunity to build decent, secure lives for themselves and their families... What gives anyone the right to point guns at them?

As we have seen, this question is tricky for those committed to liberalism. On the one hand all contemporary liberal democratic states see control over migration across their borders as a fundamental - and even constitutive - feature of state sovereignty. On the other hand, control over migration appears to violate universal liberal principles because it involves deploying coercive measures to control the behavior of people excluded from liberal democratic states on the grounds of a status (i.e. citizenship) accorded for the most part as a birthright privilege.

We have also seen that liberal democratic states respond to this tension within liberalism by establishing boundaries around liberal principles. These boundaries, which

C. Queen, cited in Naomi Mezey, "Dismantling the Wall: Bisexuality and the Possibilities of Sexual Identity Classification Based on Acts" (1995) 10 Berkley Women's L.J. 98 at 103. 2 J. Carens, "Aliens and Citizens: The Case for Open Borders" (1987) 49 The Review of Politics 251 at 251. 3 See Chapter I, Section 1.1.

271 Boaventura de Sousa Santos calls "global abyssal lines", have divided the world into two zones since at least colonialist times.5 On "this side of the line",6 full citizens of liberal democratic states govern their interactions with one another in accordance with universal liberal principles. On "the other side of the line",7 citizens of liberal democratic states are free to act upon others using technologies of violence and appropriation.8 As Santos notes, to prevent acts of violence and appropriation directed towards others from compromising the purported universality of liberal principles, "the other side of the line [must be produced] as a non-area in legal and political terms, an unthinkable ground for the rule of law, human rights, and democracy."9 In other words, liberal democratic legal systems use abyssal global lines to locate acts targeting others with violence and appropriation in legally and politically exceptional zones.10

Santos, of course, is not alone in noticing the distinction between this side of the line and the other side of the line, the existence, that is to say, of legally and politically exceptional sites. For example, Gerald Neuman, describing Guantanamo Bay (in its manifestation as a detention centre for US-bound Haitian asylum seekers interdicted on the high seas), refers to such sites as "anomalous zones". Similarly, according to Giorgio Agamben, concentration camps,12 refugee camps13 and "zones d'attentes in French international airports in which foreigners who apply for refugee status are detained"1 are all examples of a "space that is opened when the state of exception

B. de Sousa Santos, "Beyond Abyssal Thinking: From Global Lines to Ecologies of Knowledges" in Eurozine (29 Jun 2007), online: http://www.eurozine.com/articles/2007- 06-29-santos-en.html (accessed: 10 Oct 2007) [Santos, "Abyssal Thinking"] 5 Ibid, at 2. 6 Ibid, at 1. Ibid. 8 Ibid, at 2. 9 Ibid, at 4-5. 10 See Chapter I, Section 1.3. 1' G. Neuman, "Anomalous Zones" (1996) 48 Stanford Law Review 1197. G. Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford U.P., 1995) at 166. 12 Ibid, at 174. Ibid. becomes the rule." 5 Still others describe such legally exceptional sites using terms such as "rights-free zones" , "law-free zones"17 and "legal black holes".18

It is important to recall, however, that, as we saw in Chapter II, legally and politically exceptional zones are not necessarily territorially organized. In fact, legally and politically exceptional zones can be drawn not just around particular spaces, but around particular people. This phenomenon leads Harold Koh to refer to both "law-free places...[and] law-free people". Santos echoes such a view when he argues that certain classes of others are placed on the other side of the line (i.e. they are systematically excluded from the liberal rights and principles that constitute the legal systems of states on this side of the line) irrespective of where these classes of others are physically located. Santos contends, in particular, that included among these classes of others are "the undocumented migrant worker, and the refugee... [E]ach carries along with her the abyssal global lines that defines radical exclusion and legal non-existence."

In this dissertation I have sought to explore what legal scholars might contribute to understanding and responding to the way the many liberal scholars and liberal states reproduce abyssal global lines - in both their territorial and non-territorial forms - with regard to migrants and asylum seekers. More specifically, I have suggested that legal scholars can help point us toward strategies through which to challenge legally exceptional assertions of power over migrants and asylum seekers by capitalizing on the fact that these assertions of power take legal forms. I have also argued that such scholars can encourage liberal thinkers to explore alternatives to what I have called the "two-step of liberal philosophy", a common form of reasoning that leads many liberals to view border control as an exceptional subject for which purportedly universal liberal principles do not apply with their full force. My basic contention in this respect has been that liberal

15 Ibid, at 168-169. 16 J. Fitzpatrick, "Sovereignty, Territoriality, and the Rule of Law" (2002) 25 Hastings Int'l & Comp. L. Rev. 303 at 306. 17 D. Gottlieb, "Law-Free Zones" (2005) 15 Kan. J.L. & Pub. Pol'y 7. 18 J. Steyn, "Guantanamo Bay: The Legal Black Hole" (2004) 53 Int'l & Comp. L. Q. 1. 19 See Chapter II, Section 2.4.8. 20 H. Koh, "Can the President be Torturer in Chief?" (2006) 81 INLJ 1145 at 1155. 9 1 Santos, "Abyssal Thinking", supra note 4 at 5. Ibid. theorists would do well to pay more attention to the complex legal struggles between states and migrants that occur over how migrants are placed on the other side of the line through border control law. More specifically, I have argued that liberal theorists should be more attentive to: (1) contemporary border control strategies that states use to maintain one-way projections of power over non-citizens, (2) violations of basic principles of legality that result from one-way projections of power, and, (3) non-state institutions that challenge violations of basic principles of legality in border control law, including churches that provide sanctuary to non-citizens facing deportation.

In this concluding Chapter, I will now spell out in more detail what we can learn from paying closer attention to contemporary border control strategies, to the principles of legality, and to struggles by non-state institutions to challenge violations of legality in border control law.

5.2. Revisiting the Two-Step of Liberal Philosophy

In Chapter I, I introduced the concept of the two-step of liberal philosophy, the tendency among many liberal thinkers to treat questions regarding the boundaries around communities as analytically prior to questions about how to justly regulate relations among members of a community. Simply put, most two-stepping liberals put comparatively little effort into offering an account of who ought to be considered full and equal members of the community (i.e. step-1). Instead, they concentrate their efforts on developing theories about how to justly structure relations among those presumed to be full and equal members of the community (i.e. step-2). For those of us interested what liberalism has to say about justice in the context of border control, two-step reasoning is problematic because it leads many liberals to characterize border control as exceptional. In other words, because border control raises questions about who counts as a member of the community — rather than being about how to justly regulate relations within the community - two-stepping liberal theorists hold that these questions must be resolved with recourse to something other than everyday liberal principles.

See Chapter I, Section 1.3. As we have seen, the tendency among liberals to adopt two-step reasoning leads some scholars, including Catherine Dauvergne, to assert that liberalism is incapable of meaningfully addressing questions about justice in the context of border control policy. Dauvergne reasons as follows. On the one hand, "classic liberals",26 including John 97 9k Rawls and Ronald Dworkin, understand the relevant demarcated community for the purposes of liberal discussions of justice to include only the existing citizens of a given liberal democratic state. Questions raised by border control and immigration policy necessarily extend beyond that community. As a result, for such theorists, border control matters cannot be resolved through the regular liberal principles that apply within the 90 community of citizens. On the other hand, for "moral liberals", including Joseph Carens and Charles Beitz, when evaluating whether a particular policy accords with liberal principles, the appropriate delimited community includes all human beings affected by the policy in question. Because border control and immigration policy has significant effects on non-citizens who would like to immigrate, liberals adopting this latter approach argue that the relevant community for evaluating border control policies includes not only citizens but also all would-be-migrants. On this view, restrictive immigration policies are difficult to square with basic liberal equality norms, in that such restrictive polices are prefaced upon differential treatment on the basis of citizenship, a largely inherited status. Noting that classic liberals who ground their analysis in a community of equal citizens see restrictive immigration policies as unproblematic, whereas moral liberals who ground their analysis in a community of equal human beings view restrictive immigration policies as fundamentally unjust, Dauvergne argues that liberalism is simply incapable of providing definitive answers about justice in the context of border control. Rather, according to Dauvergne, liberals will continue to hold diametrically opposed views about justice in the border control setting, depending on

See Chapter I, Sections 1.3.4. 9 S See generally, C. Dauvergne, "Amorality and Humanitarianism in Immigration Law ' (1999) 37 Osgoode Hall L.J. 597. 26 Ibid at 599. 27 See Chapter I, Sections 1.3.2. 28 See Chapter I, Section 1.3.1. (see especially notes 27-32, and accompanying text). 29 Dauvergne, supra note 25 at 607. 30 See Chapter I, Section 1.3.3. Ibid. whether they adhere to the classic or moral strains of liberalism. To put this same point in the terms of the two-step of liberal philosophy, so long as the different strains of liberalism adopt distinct step-1 communities, liberalism will be unable to offer definitive step-2 answers about justice in the border control context.

When we first encountered Dauvergne's argument, I offered several critiques of her reasoning. My principle critique was that liberalism should not be reduced to a theory about how to justly structure relations among those already presumed to be equal members of a community (i.e. step-2 arguments). To the contrary, liberalism has long been successfully used to challenge restrictive demarcations around communities of presumed equals, challenges brought, for example by men without property, women, racialized minorities, and the like (i.e. step-1 arguments). As a result, I suggested that liberals must offer a more sustained analysis of why any particular demarcation around a community is a justifiable or problematic starting point for theories of liberal justice. That is to say, liberals must put more effort into their step-1 arguments.

5.2.1. Walzer's Promise: Pluralist Complex Equality

To embark upon a closer examination of step-1 in the context of liberal debates over border control, we explored the work of one of the few contemporary liberal philosophers who offers a sophisticated step-1 argument: Michael Walzer.34

Walzer's analysis begins with the notion that contemporary pluralist societies are made up of many distinct social spheres, including the family, the workplace, political arenas, and so on. He then argues that the social goods available in each social sphere carry distinct distributive logics. His argument in this respect can be broken down into two components. First, he suggests that the proper distribution of a social good is dependent on what that good means to those among whom it is distributed. Second, he

•jo Dauvergne, supra note 25 at 609 ("[LJiberal theory does not provide an answer as to whether the community's borders should be open or closed. Both arguments are supported by certain aspects of liberalism... [T]he search for 'just' immigration law in liberal society is futile"). 33 See above, Chapter 1, Section 1.4. See above, Chapter 1, Section 1.3.5. See also, M. Walzer, Spheres of Justice: A defense of pluralism and equality (New York: Basic Books, 1983) (see especially at 3-30). asserts that social goods acquire shared meanings through longstanding social practices located in particular social spheres. The existence of distinct distributive logics that derive from the shared meaning of the particular social goods available in specific social spheres leads Walzer to develop a pluralist account of liberal justice. More specifically, he argues that, when the boundaries between social spheres are preserved, individuals benefit from what he calls "complex equality". Complex equality, for Walzer, means that individuals who are disadvantaged by the distributive logic in one social sphere may nonetheless access different sets of social goods by virtue of the distinct distributive logics that inhere in other social spheres. If, however, it is possible to convert social goods from one sphere into social goods in other spheres, then complex equality may be undermined. In such a scenario, individuals who lack easily convertible social goods may find that they are systematically disadvantaged in all social spheres. To avert such systematic disadvantages, Walzer advocates a set of institutions and policies that aim to prevent social goods that emerge from one social sphere from interfering with - or in Walzer's terms, "tyrannizing"37 - the distributive logics of other social spheres.38

Walzer's notion of complex equality presents an interesting alternative to standard two-step reasoning within liberal debates over border control. This alternative relates to the way that his analysis of complex equality requires discussions of justice to be disaggregated. Traditional two-step reasoning begins with presumptions about a single bounded community as the appropriate starting point for discussions of liberal justice, and then moves directly to developing a theory about how to regulate relations within that community as a whole. Walzer's notion of complex equality, in contrast, seems amenable to the possibility that the distributive logics of different social spheres within a single society may be bounded in different ways. In two-step terms, complex equality requires a distinct step-2 for each social good being distributed. This leaves open an intriguing

ib Ibid., Walzer, at 17. 6 For example, money (i.e. a social good in the sphere of commerce) is often converted into social goods in other spheres (e.g. political power in the political sphere). Walzer, supra note 34 at 19. 38 See above, Chapter 1, Section 1.3.5. (see especially notes 93-101, and accompanying text). possibility: perhaps each distinct step-2 might carry a distinct step-1, a step-1 that would inhere in the shared meaning of the social goods distributed by that particular step-2.

As I suggested in my introductory Chapter, using Walzer's theory of complex equality to disaggregate two-step reasoning opens up interesting arguments in the context of border control policy. In particular, one might make a Walzerian argument to the effect that although some social goods may be legitimately distributed on the basis of citizenship, other social goods should be distributed irrespective of citizenship. For instance, one might contend that whereas the right to vote or the right to stand for public office in federal elections should be accorded only to citizens, the same rights in municipal elections40 or local school board elections41 should be extended to all long- term city residents, irrespective of citizenship status. Similarly, one might argue that the distribution of citizenship should not be allowed to interfere with the distribution of the right to live with one's family.42 Or one could suggest that workplace protections - such as minimum wage and health and safety regulations - ought to be distributed to all workers, without regard of their immigration or citizenship status.43 Taken together, by disaggregating two-step reasoning one could develop a set of Walzerian arguments about

See above, Chapter 1, Section 1.4. See e.g. D. Earnest, "Noncitizen Voting Rights: Extending the Franchise in the United States" (2003) 92 National Civic Review 57; M. Siemiatycki, "The Municipal Franchise and Social Inclusion in Toronto: Policy and Practice", Policy Paper prepared for Inclusive Cities Canada (October 2006) (online: http://www.inclusivecities.ca/publication/reports/2006/toronto-report.pdf) (accessed: 12 April 2008). 41 See e.g. T. Kini, "Sharing the vote: noncitizen voting rights in local school board elections" (2005) 93 Calif. L.Rev. 271. 42 Such an view underpins the right to family reunification that is enshrined in European human rights instruments: European Convention for the Protection of Human Rights and Fundamental Freedoms, (4 Nov 1950), 213 UNTS 222 at art 8; Council Directive 2003/86/EC, On the right to family reunification, 2003 O.J. (L 251) at art 12. 43 For example, the American Civil Liberties Union, the AFL-CIO, the United Mine Workers of America and the Interfaith Justice Network recently made such an argument when they filed a petition asking the Inter-American Commission on Human Rights "to find the United States in violation of its universal human rights obligations by failing to protect millions of undocumented workers from exploitation and discrimination in the workplace." American Civil Liberties Union, "Undocumented Workers Bring Plea for Non-Discrimination to Human Rights Body", Press Release (11 January 2006) (online: http://www.aclu.org/immigrants/discrim/27235prs20061101.html) (accessed: 12 April 2008). when using citizenship to structure the distribution of specific social goods within particular social spheres involves a "tyrannical" breach of the principles of complex equality.

5.2.2. Benhabib 's Promise: Pluralist Democratic Deliberations

Selya Benhabib is another example of a liberal theorist we encountered whose sophisticated analysis of liberal debates about border control holds some promise for developing alternatives to standard two-step reasoning.

Recall that Benhabib examines debates over border control through the lens of liberal deliberative democratic theory. She suggests that border control poses a paradox for deliberative democratic theorists. On the one hand, deliberative democratic theory considers it unjust to subject individuals to policies without allowing these individuals to participate as equals in the democratic processes through which the policies are articulated. Border control policies in liberal democratic states are thus prima facie problematic, in that they apply to would-be-migrants who are not entitled to participate in the processes through which those policies are developed. On the other hand, however, Benhabib contends that democratic institutions would be unworkable without some kind of closure, without, that is to say, an agreed upon criteria for eligibility to participate in those institutions. The paradox, then, is that democratic states require border control

As we have seen, Linda Bosniak characterizes this as one's of Walzer's primary contributions to political theory, namely that his analysis requires serious thought about the "legitimate scope, or jurisdiction, or what [he] has called the membership sphere." L. Bosniak. The Citizen and the Alien (Princeton: Princeton U.P., 2006) at 49. Note, however, that as we have also seen, Walzer ultimately adopts two-step reasoning due to his view that social goods obtain meaning through social practices rooted in territorially organized national communities, in which members share rich linguistic, historic and cultural ties. For Walzer, because the appropriate distribution of social goods within specific social spheres is contingent on the meaning of those social goods, the principles of pluralist liberal justice that aim to achieve complex equality across those social spheres are relevant only within - and not between - bounded national communities. According to Walzer, then, issues related to interactions between members of bounded national communities and non-members - including those covered by border control policy - are exceptional: they must be resolved with recourse to principles other than those that serve to establish complex equality. See Chapter I, Section 1.3.5. (see especially notes 103-105, and accompanying text). policies, but these policies violate the deliberative democratic principles animating those states' democratic institutions.

Rather than attempting to resolve this paradox, Benhabib suggests that the best option for deliberative democratic theorists concerned about justice in the border control setting is to draw on the pluralism found in contemporary democratic states to encourage multifaceted democratic deliberations among citizens about border control policy. In particular, Benhabib notes that many citizens of contemporary pluralist democracies develop important inter-personal links with non-citizens through, for example, family ties, business relationships, friendships, and so on. According to Benhabib, sometimes these inter-personal links develop within the territory of a given democratic state, such as when citizens attend school with peers without legal status in the country. At other times, however, these links develop outside the territory of that state, such as when citizens maintain business relationships with non-citizen abroad. Regardless of where these interactions occur, Benhabib suggests that citizens who have experienced such interactions, and who then engage with the democratic processes through which border control policies are articulated, will be more open to taking the interests of non-citizens into account in their evaluation of these policies than would be the case for citizens who had no links to non-citizens.

In Benhabib's view, then, because membership criteria are essential for democratic deliberations to function, democratic states will continue to articulate border control policies, policies that will inevitably affect non-citizens without allowing them to participate directly in the democratic deliberations that set those policies. However, by fostering enhanced links between citizens and non-citizens, Benhabib contends that one can incrementally increase the responsiveness of democratic deliberations to the needs and interests of non-citizens. The result of this incremental enhancement in the responsiveness of democratic deliberations to the needs and interests of non-citizens is, according to Benhabib, neither open nor closed borders; rather, the result is increasingly porous borders. In other words, through ongoing democratic deliberations within pluralist

See Chapter I, Section 1.3.6. Ibid, (see especially notes 138ff, and accompanying text). societies, distinctions between "us" and "them" will not vanish, but will instead become blurred, denaturalized, and contingent, rather than sharp, natural and permanent.47

Benhabib's approach represents a promising reversal of standard two-step reasoning. Rather than starting with presumptions about a bounded community (i.e. step-1) and then moving to evaluations about whether particular policies within that community are just (i.e. step-2), she focuses instead on how ongoing democratic deliberations about particular policies can gradually shift, expand and complexify the boundaries around the community within which the democratic deliberations occur.

Ibid, (see especially notes 143, and accompanying text). Note, however, that as I argued in Chapter I, Benhabib's approach involves only a partial reversal of two-step reasoning. In particular, I suggested that because Benhabib limits her analysis largely to democratic deliberations occurring within territorially organized state-based institutions, she ultimately embraces a problematic form of two- step reasoning. Recall that according to Benhabib, certain outcomes of democratic deliberations on border control are impermissible on the grounds that such outcomes violate the "the communicative freedom of human beings qua human beings". S. Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Cambridge U.P., 2004) at 139. Included among the outcomes she lists as impermissible are permanent bars on citizenship based on largely ascriptive factors such as gender, race, religion, and sexual orientation. Unfortunately, Benhabib does not see the connection between these impermissible outcomes and the way that the democratic deliberations about border control that she advocates presuppose birthright citizenship in territorially organized states. More specifically, Benhabib argues that deliberative democratic theory is compatible with immigration screening procedures that accept only those would-be- immigrants whose education, work experience and language skills indicate that their admission would contribute substantially to the community of existing citizens. The reason such screening procedures are acceptable for Benhabib is because they do not target people for differential treatment on the basis of ascriptive personal characteristics. Rather, they set out measures (e.g. education, language and skill training) that would-be- immigrants have to take if they wish to become members of another community. The problem here is that Benhabib would surely object if such screening mechanisms were applied to those who currently acquire citizenship in democratic states by birth, yet she fails to explain why such policies are not similarly problematic when applied to those born outside democratic states. Instead, she simply presumes that all those born in a democratic state are always already citizens, and, therefore, that the democratic deliberations about border control policies apply only to non-citizens seeking admission. In this respect, she replicates - rather than reverses - both the two-step of liberal philosophy and the exceptionalism to which it leads: policies that would be viewed as illiberal if directed towards those presumed to be part of "us" (i.e. step-1 = those who acquired citizenship by birthright) are understood to be acceptable if applied only to those presumed to be "others" seeking admission. See Chapter I, Section 1.3.6 (see especially notes 144-151, and accompanying text). Particularly interesting for our purposes is that Benhabib sees the gradual expansion of the community as being related to the empirical reality that sharp us/them distinctions are no longer co-extensive with the boundaries around territorially delimited national communities, because of rich networks of social, political and economic relations between citizens and non-citizens (i.e. "the other is not elsewhere"49). As I argued in Chapter I, a particularly helpful way to further blur us/them distinctions along the lines Benhabib advocates would therefore be to build democratic deliberations about border control within sites where the relations between citizens and non-citizens are rich and where us/them distinctions are always already blurred. Because state based democratic institutions, however, are among the institutions that are most strongly committed to us/them distinctions (i.e. because states view border control as a fundamental feature of state sovereignty), it may be especially useful to try to encourage democratic deliberations about border control in non-state based institutions.5 Such institutions would include the multiplicity of social spheres within contemporary pluralist societies identified by Michael Walzer, spheres that, as we have seen, are not necessarily coterminous with national boundaries. Thus, for example, one might want to pay particular attention to how democratic deliberations over border control play out in faith- based communities,5 in universities, or within business communities.5 The main

Benhabib, supra note 48 at 87. See Chapter I, Section 1.3.6 (see especially note 151, and accompanying text). 51 Ibid. CO It is striking in this regard that faith-based communities are very actively involved in debates over immigration and refugee policy. Indeed, many faith-based non governmental organizations are among the most prominent actors seeking to draw attention to the needs and interests of non-citizens within debates on border control. In Canada, such organizations include: Canadian Council of Churches; KARIOS: Canadian Ecumenical Justice Initiatives; Jewish Immigrant Aid Services of Canada; Jewish Child and Family Services; Mennonite Central Committee Canada; Manitoba Interfaith Immigration Council; FCJ Refugee Centre; Inter-Church Refugee Project; Becoming Neighbours - Joint Apostolic Ministry; Salvation Army Refugee Services; and Catholic Social Services. 53 Consider, for example, the World University Service of Canada (WSUC), which has established a Student Refugee Program. This program encourages universities - and individual members of university communities - to sponsor student refugees for resettlement in Canada. Through the program, over 900 refugees have resettled (and pursued university studies) in Canada. In addition to the administering this program, advantage of locating democratic deliberations in these spheres is that, rather than merely seeking to encourage citizens be responsive to the interests of non-citizens in their bounded democratic deliberations with one another (i.e. deliberations which always already exclude non-citizens), such an approach involves democratic deliberations in which non-citizens participate, not as members of the larger democratic community, but rather as actors (or to use somewhat more colourful terminology, "denizens") within the particular social sphere in question.

5.3. The Contribution of Legal Scholars

As I argued in Chapter I, despite the promise I identify in their work, both Walzer and Benhabib ultimately embrace two-step reasoning and the exceptional understandings of border control to which it leads.5 Nonetheless, in my view their approaches can, in combination with the work of legal scholars, point towards strategies for developing alternatives to exceptional understandings of border control.

One of the most significant contributions that legal scholars can make in this regard is to help shift the focus of debates over border control - whether debates within Walzer's social spheres or within Benhabib's democratic deliberations - away from substantive disagreements about the proper delimitations around communities. Rather

WSUC regularly runs public information campaigns on issues of importance to refugees. Details WSUC's programs are available online: www.wusc.ca (accessed: 15 April 2008). Businesses have played a central role in debates over immigration policy and border control. See e.g., P. McGeehan & N. Bernstein, "Businesses Say New York's Clout is Emigrating, With Visa Policies to Blame" in The New York Times (24 March 2008) Bl; K. Zezima, "Small Businesses Face Cut in Immigrant Work Force" in The New York Times (14 March 2008) A16; S. Chase, "Jobs Alert Sounded About Border: Security crackdown at crossing stifling commerce, Canadian, U.S. business leaders warn" in The Globe & Mail (21 February 2008) B5. 55 Such an approach, therefore, moves away from the problematic notion that proximity to an "other" necessarily encourages one to take the interests of the "other" into account. Instead, it fosters actual dialogues between those constructed as "insiders" and those constructed as "others". For a critique of virtual representation (i.e. rather than actual presence) in what Benhabib calls democratic deliberations see I. Young, "Asymmetrical Reciprocity: On Moral Respect, Wonder, and Enlarged Thought" in R. Beiner & J. Nedelsky (eds.), Judgment, Imagination and Politics: Themes From Arendt and Kant (Lanham, Maryland: Rowman & Littlefield, 2001) 205 (see especially at 225). 56 See above, notes 44 & 48 284

than focusing on substantive disagreements, legal scholars can instead bring increased

en attention to the procedures through which actual communities are delimited, and, importantly, to the legal controversies that emerge surrounding systemic flaws in these procedures.

Lon Fuller often advocated such an approach, although he never applied it to the context of border control. More specifically, Fuller argued that it is frequently possible to locate partial resolution to divisive moral and political controversies by focusing on their procedural aspects.5 For example, writing in 1964, Fuller - who was, it is worth noting, a Republican60 - argued that even those who have serious moral objections to homosexuality could acknowledge that laws criminalizing consensual same-sex sex are procedurally problematic, and ought to be avoided on this basis: [T]he law ought not to make it a crime for consenting adults to engage privately in homosexual acts. The reason for this conclusion would be that any such law simply cannot be enforced and its existence on the books would constitute an open invitation to blackmail, so that there would be a gaping discrepancy between the law as written and its enforcement in practice. I suggest that many related issues can be resolved in similar terms without our having to reach agreement on the substantive moral issues involved.

In my view, controversies surrounding border control law can be usefully approached in a similar manner. That is to say, it would be helpful to move the focus

fry away from defending - or worse, simply asserting - presumptions about the appropriate delimitations around communities. Instead, we should concentrate on evaluating the measures through which these boundaries are operationalized, or, in Richard Ford's

This was the main aim of Chapter II. 58 This was the focus of Chapters III and IV. 59 As we have seen, this was Fuller's approach in his famous debate with H.L.A. Hart over the status of "Nazi Law". See Chapter I, Section 3.2.4. (see especially notes 73-84, and accompanying text). 60 For a fascinating account of Fuller's life - including his affiliation with the Republican Party in general, and Richard Nixon in particular - see, R. Summers, Lon L. Fuller (London : Edward Arnold, 1984). 61 L. Fuller, The Morality of Law (Rev 'd ed.) (New Haven: Yale U.P. Press, 1964) [Fuller, MOL] at 132. As I argued in Chapter I, most liberal philosophers do not actually defend their assumptions about how communities ought to be bounded. See Chapter I, Section 1.3.1. terminology, the way that borders are "constantly being made real". In particular, when measures that make the borders real take a legal form, we should assess whether they comply with principles of legality, the largely procedural norms that Fuller identified as constituting law as a form of social order.64 In two-step terms, legal scholars can encourage us to temporarily set aside substantive disagreements regarding step-1. In the place of such substantive debates, we would undertake a procedural analysis of step-1, focusing in part on the relation between border control procedures and legality.

5.3.1. Challenging One-Way Projections oj Power that Take Legal Forms

In adopting this approach whereby we seek to understand the relation between border control procedures and the principles of legality, it will be imperative to remember that, as Fuller persuasively argues, the basic aspiration of law as a form of social order is to provide relatively stable guidelines that individuals can use to govern their self- directed interactions with one another. Recall that what Fuller called the eight principles of legality, are the features that legal rules must have if they are to have a chance at fulfilling this aspiration. As a result, all those who are expected to govern their interactions with others with reference to rules that emanate from a legal order can reasonably demand that these rules involve the sorts of norms that are capable of w R. Ford, "Law's Territory (A History of Jurisdiction)" (1998) 97 Mich. L. Rev 843 at 856. See also Chapter II, Section 2.2. (see especially notes 19-22). 6 To say that these norms are largely procedural is not, of course, to suggest that they have no substantive component. To the contrary, as we saw in Chapter III, for Fuller, the principles of legality are animated by a substantive commitment to the project of law: providing relatively stable guidelines through which human beings govern their relations with one another. Fuller acknowledged that it is in principle possible that those seeking to establish not legal order but rather managerial order (i.e. one-way projections of power) may still choose to adhere to the principles of legality. However, their decision to do so would be a matter of expediency, and, as we have seen, managerial orders often have strong incentives to violate the principles of legality. For a full discussion, see Chapter III, Section 3.2. 65 See Chapter III, Section 3.2.4. (see especially note 42, and accompanying text). 66 The eight principles are that legal rules ought to be: (1) general; (2) publicized to the affected parties; (3) proscriptive; (4) understandable; (5) non-contradictory; (6) mindful of demanding only conduct within the powers of the affected party; (7) changed only with reasonable frequency; and (8) administered as announced. L. Fuller, The Morality of Law, Revised Edition (Yale: Yale U.P., 1969) ["MOL"] at 39. See also, Chapter III, Section 3.2.4. providing guidelines for self-directed interactions. In other words, they can demand that the rules comply with the principles of legality.

This, however, is not the end of the matter. After all, to say that all those expected to organize their self-directed interactions with reference to legal rules must have access to rules that accord with the principles of legality does not tell us who ought to be party to legally organized interactions in the first place. This issue poses challenges in the border control setting, because, as we have seen, border control law aspires to operate in three distinct modes simultaneously.

First, border control regimes aim to define who is entitled to citizenship and to establish rules governing self-directed interactions between citizens. Border control policies establish, for example, the steps citizens need to take in order to sponsor noncitizen family members for immigration, the steps companies must take to hire temporary foreign workers, and the procedures through which citizens can mobilize to secure protection against labour market competition from non-citizens. Because such rules aim to facilitate self-directed interactions among citizens, they involve a form of legal order. Thus, to function properly, they must comply with the principles of legality.67

Second, border control regimes attempt to define who are welcome non-citizens, and to facilitate immigration and temporary visits by such non-citizens. This aim is accomplished through, for example, immigration law provisions that apply to highly sought-after economic class immigrants, and through rules about what steps non-citizen tourists, students, or businesspersons need to take in order to come temporarily to the country. In general, we can understand rules in this area as aiming to provide guidelines for governing self-directed interactions between citizens and certain classes of (desirable) non-citizens. As such, they amount to legal order, and to function effectively, they must comply with principles of legality.

Although border control aspires to organize interactions through legal forms in both these two contexts, there is a third setting in which border control operates in a very

67 See Chapter III, Section 3.4.1. Ibid.. different manner. This third setting involves defining and excluding unwelcome non- citizens, including, most notably, undocumented migrants and asylum seekers. As we have seen in Chapters II and III, states are not committed to the basic aspiration of legal order with regard to either group of unwelcome non-citizens. That is to say, they do not seek to establish rules allowing unwelcome non-citizens to govern their self-directed interactions with citizens. Rather, states seek to unilaterally project power over unwelcome non-citizens so as to direct their behavior through a managerial form of social order.69 Because, as Fuller demonstrated, the principles of legality are not a necessary feature of managerial order, and because, to the contrary, the principles of legality often constrain unilateral projections of power, states have strong incentives to depart from these principles wherever expedient when dealing with unwanted classes of non-

• • 70 citizens.

Taken together, because border control aspires to govern self-directed interactions as between citizens, and as between citizens and certain classes of desirable non-citizens, border control generally takes a legal form. However, because border control simultaneously aspires to unilaterally project power over unwanted classes of non- citizens, states seek to manipulate these legal forms so as to establish managerial order vis-a-vis unwanted non-citizens. Moreover, because managerial order is sometimes most effective when the principles of legality are disregarded, the result is that border control operates through legal forms, but these legal forms are distorted by systematic violations of the principles of legality. Indeed, as we have seen, each of the eight principles of legality that Fuller identifies are regularly breached in the border control law setting:

(1) The Existence of Rules: States regularly attempt to control the behavior of non-citizens not with reference to rules, but rather, through ad hoc decision-making in which outcomes are largely contingent on the identity of decision-makers. (2) Promulgation: When there are legal rules, sometimes these rules are unpublished - especially in the context of national security matters.

69 For a discussion of managerial order, see Chapter III, Section 3.2.4. 70 See Chapter III, Section 3.4.1. 71 See Chapter III, Section 3.3.1. Also, many border control responsibilities have been delegated to private actors who have no obligation to publicize the decision making processes they utilize to meet these responsibilities. (3) Non-Retroactivity: States sometimes resort to retroactive rules to cure what would otherwise be illegal assertions of power over non- citizens. Moreover, changes to immigration law requirements regularly apply retroactively to non-citizens who applied for

7^ immigration under previous rules. (4) Clarity: Rules in the border control context are often vague and difficult to interpret. (5) Non-Contradiction: Border control law is sometimes literally contradictory, and more often operates at cross-purposes, especially in relation to asylum seekers.75 (6) Possibility of Compliance: Many border control laws are very difficult to comply with for the vast majority of would-be immigrants. Even more seriously, sometimes compliance is only possible at the cost of the lives of asylum seekers.76 (7) Infrequent Changes: Border control laws are often located not in legislation but in regulations, administrative instructions and policy manuals, precisely so that they can be changed quickly (and without significant oversight).77 (8) Administering Rules as Announced: Finally, even when border control laws do comply with the other principles of legality, states often fail to administer them as announced. In fact, states frequently promulgate immigration laws that they have neither the desire nor the no intention to apply.

See Chapter III, Section 3.3.2 See Chapter III, Section 3.3.3. See Chapter III, Section 3.3.4 See Chapter III, Section 3.3.5. See Chapter III, Section 3.3.6 See Chapter III, Section 3.3.7 See Chapter III, Section 3.3.8 Despite the existence of these systemic departures from the principle of legality, so long as border control continues to operate through what purports to be a form of legal order, it will be possible to argue that border control law must comply with the principles of legality. And, as we have seen, this is the very argument - i.e. all laws must comply with the largely procedural norms that constitute law as a form of order - that is the heart of rights friendly jurisprudence involving non-citizens, including Singh v. Canada19 and

SO its analogues around the world.

As we have also seen, however, there are serious limits to such jurisprudence. In particular, because state executives view discretionary power over border control as one of the fundamental features of state sovereignty, they frequently attempt to insulate their border control activities from legal due process claims. As set out in detail in Chapter II, some of the more prominent strategies through which states attempt to limit due process

Q 1 claims in the border control setting include: extra-territorial border control, the deputization of private actors who act as de facto border guards, legal fictions such as partial territorial excision, and severe legislative restrictions on opportunities to legally contest border control decisions.

At the same time, courts also remain strongly committed both to territorial sovereignty and to the notion that control over migration across state borders is one of the

Of constitutive features of state sovereignty. It is, therefore, not surprising that the central norm in immigration and refugee jurisprudence is that the ability of non-citizens to enter or remain on state territory is a privilege accorded by the state, rather than a right enjoyed

' [1985] 1 S.C.R. 177 at f35 (holding that the right not to be deprived of life, liberty, and the security of the person, except in accordance with the principles of fundamental justice, extends to all those who are "amenable to Canadian law"). See also Chapter II, Section 2.2. 80 See e.g., Zadvydas v. Davis, 533 U.S. 678 (2001) at 693 ("the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent"). See also Chapter II, Section 2.2. 81 See Chapter II, Section 2.3. 82 See Chapter II, Section 2.3.3. 83 See Chapter II, Section 2.4. 84 See Chapter II, Section 2.4.8. 85 See Chapter II, Section 2.2. by non-citizens. As a result, when non-citizens argue in court that particular border control laws restricting their ability to migrate or remain in the country violate the largely procedural norms that constitute law as a form of social order, these procedural norms are generally given a less robust interpretation than when similar arguments are deployed by citizens in other legal contexts, even in cases where the types of interests at stake are far less weighty. In other words, courts, like state executives, commonly accept that border control law can legitimately be accomplished through legally exceptional means, means that depart from standard due process norms.

Now, I do not mean to suggest that, due to these limitations, jurists should simply give up on courts (or other branches of government for that matter) as forums in which to challenge violations of legality in the border control setting. To the contrary, one of the aims of this dissertation has been to develop legal arguments that can be effective in these settings. For example, my empirical analysis of variations in grant rates across Canadian refugee adjudicators aims in part to offer a tool that refugee lawyers can use when judicially reviewing negative refugee determinations made by adjudicators with grant rates that are so disproportionately low as to indicate a reasonable apprehension of bias.

Still, given the limitations, it would be prudent for those committed to the values that constitute legal order to locate alternative forums in which to supplement efforts made in court and other state-based institutions to contest violations of legality in border control law.

5.3.2. Legal Pluralism & Resistance to Strains on Legality

As we have seen, one way to try to locate such alternative forums is by drawing on legal pluralism, the notion that there is often more than a single legal order operating

Ibid, (see especially notes 5-9, and accompanying text). 87 See Chapter II, Section 2.5. 88 See Chapter III, Section 3.3.1. For an argument that variations in grant rates can be used in such a manner, see S. Rehaag, "Troubling Patterns in Canadian Refugee Adjudication" (forthcoming) Ottawa Law Review. in any given environment. Where multiple legal orders are present, and the state-based legal system - due to its commitments to territorial sovereignty and to legally exceptional exercises of power over non-citizens - is insufficiently responsive to violations of legality in border control law, then it may be useful to seek to highlight and challenge these violations of legality by resorting to non-state-based legal orders.91

In Chapter IV, I argued that faith-based communities that offer sanctuary to non- citizens facing deportation are examples of non-state-based legal orders which highlight and problematize violations of legality in border control law.92 Moreover, I also demonstrated that through a complex interplay between ecclesiastic, international and domestic law, some faith based communities have gone so far as to use church sanctuary practices to establish extra-state refugee determination procedures that mitigate some of the more harsh consequences of violations of legality in state-based border control law. Canadian sanctuary providers, for example, have prevented several allegedly unlawful deportations, by establishing de facto appeal mechanisms that aim to correct errors in refugee adjudication resulting from systematic procedural flaws in the official state-based refugee determination process. Moreover, Canadian church sanctuary practices - like their American counterparts - have drawn substantial public attention to systemic procedural flaws in border control law, and have significantly contributed to policy reform efforts.94

As I noted previously, the terminology here is not my main preoccupation. Readers who are uncomfortable with using the label "law" for extra-state rules and processes that govern social interaction may substitute some other term (such as "social spheres", or "normative orders"). What I do want to insist, however, is that within these sites there is often a complex engagement between official state-law and the legal (or normative) traditions that are internal to these sites. See Chapter IV, Section 4.1. 91 See Chapter III, Section 3.5, and Chapter IV, Section 4.1. 92 See Chapter IV, Sections 4.3-4.4. 93 See Chapter IV, Sections 4.4.9-4.4.10. For a discussion of the impact of Canadian Sanctuary incidents on efforts to reform Canada's refugee determination system - especially with regard to the implementation of the Refugee Appeal Division of the Immigration and Refugee Board, see Chapter IV, Section 4.4.4. For a discussion of how the US Sanctuary Movement brought about systemic improvements to the US refugee determination system - particularly in terms of limiting the effect of foreign policy considerations in refugee determinations - see Chapter IV, Section 4.3.5. Of course, church sanctuary practices have been criticized - by government officials, among others - for breaching of rule of law principles. And, indeed, it must be acknowledged that when state officials defer to sanctuary practices, those taking sanctuary effectively exempt themselves from the general application of border control law, thereby leading to a scenario where state law is not being enforced as it is announced, thus representing a breach of Lon Fuller's eighth principle of legality. 6 Moreover, the internal processes employed by churches offering sanctuary may similarly be subject to rule of law critiques. For example, these screening processes may not be

Q7 entirely transparent, and factors that are extraneous to determining whether an individual meets the refugee definition often have significant impacts on decisions about whether to accord sanctuary.98

Although there are, therefore, rule of law arguments against sanctuary practices, it nonetheless remains possible for sanctuary providers to plausibly contend that, so long as they provide sanctuary publicly and openly, 9 they do not materially interfere with official border control law enforcement activities.100 Rather, in such circumstances, they simply offer non-citizens a forum through which to bring heightened attention to (and to

V5 See Chapter IV, Sections 4.3.4. & 4.4.6. 96 See Chapter III, Section 3.3.8. 07 This problem may be amplified in scenarios where a church foresees a serious possibility of exposure to significant legal penalties for the decision to accord sanctuary, as such exposure may encourage churches to seek to avoid a public scrutiny. I thank Jennifer Nedelsky for articulating this point. no The United Church of Canada's guidelines on sanctuary, for example, notes that among the factors that churches should take into account when assessing requests for sanctuary are: whether "the individual [can] withstand the scrutiny and stress of long- term sanctuary" and "what residential accommodations can be made for the refugee... (e.g. is plumbing adequate)". United Church of Canada, Sanctuary For Refugees? A Guideline for Congregations (Toronto: United Church of Canada, 2004) at 7. I do not mean to suggest here that when sanctuary providers employ "concealment" rather that "exposure" strategies (see above, Chapter IV, notes 140-143 (and accompanying text)), sanctuary practices cannot be justified with reference to the rule of law. Rather, I merely mean that in such circumstances, one argument about the legality of sanctuary (i.e. that sanctuary providers do not interfere with official border control law) is inapplicable. (° As such - at least in the Canadian context - it is possible to argue that sanctuary providers do not breach any provisions of state based immigration or criminal law merely by offering sanctuary to individuals subject to deportation orders. See Chapter IV, Sections 4.4.10. increase the political costs of) border control enforcement activities that are themselves allegedly unlawful. Where sanctuary practices involve unsuccessful refugee claimants, the argument made in this regard is that systemic violations of the principles of legality in the official refugee determination system produce errors in refugee adjudication. These errors, this argument runs, result in the state seeking to deport "genuine" refugees (i.e. those who in fact meet the legal refugee definition) in contravention of domestic and international refugee law. By offering sanctuary to refugees facing purportedly unlawful deportation, churches are able to increase public awareness of both the individual's compelling case, and the systemic procedural flaws in the refugee determination system. As we have seen, these efforts have proven surprisingly effective both in assisting individual migrants avoid allegedly unlawful deportation and in encouraging reluctant state authorities to bring their border control enforcement activities into compliance with the principles of legality.101

In addition to pointing to forums for mitigating the consequences of violations of legality in border control law and for encouraging states to comply with the principles of legality in their border control efforts, it seems to me that the church sanctuary practices reviewed in this dissertation have even wider implications. In fact, as we will now see these practices point to a way to helpfully combine the insights of Walzer, Benhabib and Fuller in order to challenge the exceptional understandings of border control built into what I have called throughout this dissertation the two-step of liberal philosophy.

5.3.3. A Pluralist Alternative to Exceptionalism in Border Control

How, then, might one try to understand the implications of sanctuary practices for rethinking the two-step of liberal philosophy by filtering those practices through the combined lens of Lon Fuller's work, as well as the promising aspects I have identified in the pluralist approaches of Michael Walzer and Seyla Benhabib?

Firstly, from Fuller, we would take the notion that when we encounter deeply divisive moral or political issues, it may be possible to partly resolve those issues not by

1 See Chapter IV, Sections 4.4.1.-4.4.2., 4.3.5. & 4.4.4. securing agreement on the underlying substantive matters, but rather by assessing the procedural questions the issues raise. In the context of border control, such an approach suggests that we put less focus on trying to come to an agreement about who ought to be included within the community (i.e. step 1) that is thought to be relevant for liberal discussions of justice (i.e. step 2). Instead we would concentrate on assessing the processes through which the inclusions and exclusions that constitute the community are actually achieved. In particular, to the extent that the processes aiming to achieve these inclusions and exclusions purport to involve legal order, we would want to evaluate whether these processes comply with the norms that are constitutive of law as a form of social order (i.e. Fuller's principles of legality).

Next, we would draw on the work of Michael Walzer who argues that contemporary pluralist societies are made up of multiple social spheres, none of which should be able to dominate or tyrannize the distribution of social goods in other social spheres. Based on such an approach, rather than asking the general question of who should be understood as members of the community for the purposes of distributing all social goods within that community, one could instead query to what degree citizenship is a relevant consideration for the distribution of each particular social good in each social sphere. One specific issue that should be queried along these lines is the degree to which citizenship ought to be allowed to influence the distribution of what Fuller identifies as the central social good produced by the legal system: rules through which individuals can govern their self-directed behavior with one another.

Finally, from Seyla Benhabib we would take the notion that, in contemporary pluralist societies where citizens and non-citizens have increasingly complex relations both within and across borders, the boundaries around the community can gradually be expanded through democratic deliberations about border control policies. This expansion occurs because, as the interactions between citizens and non-citizens become richer, citizens engaging in democratic deliberations about border control will increasingly take the interests of non-citizens into account. One set of issues that citizens ought to be pressed to discuss within these democratic deliberations is not merely the question of who ought to be included within the community, but also what means can legitimately be used to accomplish both inclusions and exclusions from the community. In particular, democratic deliberations should address the appropriateness of using what purport to be legal forms, but which in fact operate as one-way projections of power that systematically violate principles of legality. It may, moreover, be especially helpful to relocate some of these democratic deliberations away from state-based institutions. After all, the aim of Benhabib's democratic deliberations about border control is to problematize exclusions from the community. It would therefore be useful to locate these democratic deliberations within the very social spheres in which citizens and non-citizens most regularly come into contact and in which social goods are distributed on the basis of criteria other than membership in the larger political community. In such social spheres non-citizens may participate in the democratic deliberations, not as members of the political community, but rather as denizens of (or actors who inhabit) the social spheres in question.

Taken together, this combined approach suggests that we try to foster debates in several different social spheres on the topic of justice and border control procedures, including debates about violations of legality that inhere in these procedures. In the end, paying attention to these decentred and decentralized debates would help us develop a means to think about border control and liberal principles of justice without falling prey to standard two-step reasoning and to the exceptional understandings of border control to which such reasoning leads. In other words, rather than trying to finally achieve substantive agreement about appropriate boundaries around communities within which one develops comprehensive theories of liberal justice, such an approach instead seeks to build discussions about justice and border control procedures that can serve to incrementally enhance the porosity of actual boundaries around communities. In this way, exclusions from communities will gradually be denaturalized, problematized and, ultimately, corroded.

As I have argued in this dissertation, church sanctuary practices are one example of a social sphere in which complex debates about border control procedures have brought enhanced attention to - and in fact, have successfully developed alternatives to - exceptional exercises of power directed towards excluding specific classes of non- citizens from the community. Church sanctuary practices, in other words, offer alternatives to two-step reasoning in the way that I have just suggested. In the end, this dissertation has identified church sanctuary as a promising strategy through which to challenge both the two-step of liberal philosophy and legally exceptional border control enforcement activities, particularly in circumstances where procedural flaws in refugee determination systems may lead states to breach international and domestic law by deporting individuals who meet the refugee definition. However, the basic approach I have set out can also assist us to identity and learn further from other sophisticated debates about border control and what Lon Fuller called the principles of legality. Some of these debates occur in state-based institutions such as courts and legislatures. Other equally interesting and equally productive debates about legality and border control, however, occur outside state-based bodies, in a multiplicity of different social spheres and social institutions. Moreover, often there is an interaction between debates about border control and legality that occur within and outside state-based forums. Those of us interested in challenging violations of legality in border control enforcement activities - and those of us interested in moving beyond the exceptional understanding of border control more generally - would do well to accord increased attention to these debates.

It seems to me, then, that what the church sanctuary practices reviewed in this dissertation point to is the need for further research to locate similar forums in which to challenge both two-step reasoning and legally exceptional exercises of power over non- citizens. It is to a brief discussion of possible sites for further research that we will now turn.

5.4. A Research Agenda

Just as I have shown how sanctuary practices (in both the initial US Sanctuary Movement and the ongoing Canadian sanctuary incidents) have challenged systemic procedural flaws in the refugee determination system, in my view, it would be worth attempting to locate sites for exploring how other aspects of legally exceptional border control law is confronted and resisted. Two particular types of challenges to legally exceptional border control laws bear particular emphasis: challenges to under-enforced immigration laws pertaining to undocumented migrants, and challenges to extra territorial border control laws directed towards preventing asylum seekers from reaching destination state territory and thereby accessing the state's refugee determination system.

5.4.1. Challenging Under-Enforced Migration Laws

Firstly, it would be worth trying to locate sites that challenge under-enforced immigration laws that have led to the development of an entire underclass of undocumented migrants in states such as Canada and the United States.

In this regard, further research on the New Sanctuary Movement that has emerged in the United States in recent months would be warranted. Recall that this Movement involves, not asylum seekers, but rather undocumented migrants facing imminent deportation who have resided for long periods of time in the US and who have US-born children. As we have seen, the justification that those involved in the New Sanctuary Movement offer for these practices relates to restrictive immigration laws that the US government has no intention of systematically enforcing. These under-enforced immigration laws create a scenario whereby a substantial proportion of the US economy relies on the labor of undocumented workers whose presence in the country is precarious, and who cannot easily benefit from legal protections available to other workers. By offering sanctuary to such individuals, those involved in the New Sanctuary Movement are able to protect a small number of undocumented migrants from deportation, to highlight difficulties faced by the underclass of undocumented migrants created by under-enforced immigration laws, and to contribute to debates over immigration law reform. It would, in my view, be worth following the developments of the New Sanctuary Movement closely, paying particular attention to arguments that sanctuary providers

I 07 make regarding purported violations of legality within US immigration law.

Along similar lines, it would be interesting to examine how non-faith-based organizations may also challenge violations of legality that result from under-enforced -

For a discussion of the New Sanctuary Movement, see Chapter IV, Section 4.3.6. 298

and largely unenforceable - immigration laws with respect to undocumented migrants. One particularly promising case study would be to examine a recent controversy that erupted when Canada Border Services Agency [CBSA] officers entered a primary school in Toronto, took custody of two school children, and threatened to place the children into foster care if their parents did not immediately report for deportation. In response, the Toronto District School Board trustees voted in favor of adopting a "Don't Ask, Don't Tell" policy with regard to immigration status, arguing that schools should be "considered 'sanctuary zones' with immigration officials not allowed to enter."104 Interestingly, the Minister responsible for the CBSA concurred that schools should be free from border control enforcement activities: Public Safety Minister Stockwell Day has rebuked border-service agents for entering two Toronto schools last week and removing students to immigration detention centres. "I didn't like what I saw," Day told reporters..."Most Canadians didn't and I have the assurance that that message has gotten through. This is not a normal practice and we don't want to see it become that."

It would be worth looking in detail at the types of arguments - including legal arguments about violations of legality - made to justify why schools should be, as the Toronto District School Board trustees put it, "sanctuary zones". It would also be interesting to look at a number of other social institutions (whether they are conceived of as "legal orders" or as Walzerian "social spheres") where similar types of arguments have been

M. Jimenez and C. Alphonso, "Pupils held in asylum case spark review" in The Globe & Mail (2 May 2006) Al. 104 T. Boyle, "No-status pupils on agenda" in The Toronto Star (19 April 2007) A20. 1 5 S. Delacourt, "Day orders review of children seized at school" in The Toronto Star (2 May 2006). made, including hospitals, shelters for women who are victims of domestic violence, and even municipal police forces.108

5.4.2. Challenging Legally Exceptional Extra-Territorial Border Control

Secondly, given my discussion of extra-territorial border control strategies in Chapter II, it would be especially useful to try to identify forums that challenge violations of legality that occur in border control enforcement activities outside destination state territory. One place to begin would be to examine how, in the initial US Sanctuary Movement, some sanctuary providers assisted Central American asylum seekers in crossing the Mexico-US border undetected. As we have seen, the justifications offered by those involved in the US Sanctuary Movement focused mostly on tying sanctuary practices undertaken within the United States to the systemic flaws in the official refugee determination process.109 It would be interesting, however, to learn more about the views of those involved in the US Sanctuary Movement on the specific issue of the legality of helping asylum seekers cross the Mexico-US border. This would likely require field research, as I have been unable to locate secondary sources setting out the views of sanctuary providers on the subject.1

IUb N. Keung, "Illegals afraid to see a doctor" in The Toronto Star (23 May 2006) A4. 1 07 In January of 2008, CBSA officials allegedly entered a Toronto shelter for women victims of domestic violence to enforce a removal order. The Refugee Lawyers Association of Ontario is currently considering whether to pursue a public media campaign to raise awareness of the incident. The aim of such a campaign would be to prompt the articulation of an official policy to prevent enforcement activities within shelters similar to the one set out in response to the public controversy over border control enforcement activities in Toronto Schools. See e.g. Lina Anani, "Client Arrested in Woman's Shelter", email sent to the Refugee Lawyers' Association Listserv: 30 January 2008) (on file with author). The Toronto Police Services Board, for example, has issued the following formal Don't Ask, Don't Tell policy. Police services should be available to all members of the community, regardless of their immigration status. Victims and witnesses of crime shall not be asked their immigration status, unless there are bona fide reasons to do so. (Toronto Police Services Board, "Victims and Witnesses Without Legal Status" (TBS Policy: Min. No. P34/06, PI40/06) (on file with author)). 109 See Chapter IV, Section 4.3.4. 110 A possible starting place would be to look more closely at the views of sanctuary providers with respect to a legal argument made during an appeal from the convictions In addition to examining the initial US Sanctuary Movement along these lines, one contemporary site that would be worth studying to identify resistance to legally exceptional extra-territorial border control is the recent arrest of Janet Hinshaw-Thomas. In September of 2007, Hinshaw-Thomas, a volunteer with a US faith-based organization serving refugees, drove twelve Haitian asylum seekers in the United States to the Canada- US border, where they presented themselves to Canadian border officials and indicated that they wished to make refugee claims.111 The asylum seekers were then legally admitted to Canada to pursue their refugee claims. However, as we have seen, Canada's visa regime attempts to block asylum seekers from reaching Canadian territory by denying them the possibility of obtaining visas, and penalizing anyone who provides flowing from the US Sanctuary trial. More specifically, lawyers for the convicted sanctuary providers argued that the Central American asylum seekers were legally entitled to cross the border: [AJppellants contend that... '[fjhe overall structure of U.S. refugee law presupposes that bona fide refugees are lawfully entitled to enter this country, by whatever means, and apply for asylum.' As support, they cite the 1980 Refugee Act, which changed the law by permitting undocumented aliens already in the United States to file asylum applications... [They] also reason that this change acknowledges an alien's right to cross our borders without due presentment. {United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989) at |56. Haitian asylum seekers have a strong incentive to make refugee claims in Canada, rather than in the US. According to the United Nations High Commission for Refugees [UNCHR] the recognition rate in 2006 in first instance asylum determinations made in the US in cases involving Haitians was 18%. The similar figure for Canada was 56%. UNHCR, Annex to the UNHCR Statistical Yearbook 2006 (2007) (online: www.unhcr.org/statistics) (accessed: 19 April 2008) at Table 9. Moreover, at the time of writing, Canada has imposed a temporary stay of removals on Haitian nations, which means that most unsuccessful Haitian refugee claimants are not being deported. For a list of countries for which removals are currently stayed, see Citizenship and Immigration Canada, "Canada-U.S. Safe Third Country Agreement" (online: http://www.cic.gc.ca/ENGLISH/department/laws-policy/menu-safethird.asp) (accessed: 19 April 2008). 112 In Chapter II, we saw that Canada has largely closed down its land border to asylum seekers through a bilateral agreement with the US. Canada-US Safe Third Country Agreement, 5 December 2002 (online at: http://www.cic.gc.ca/english/policy/safethird.html (accessed Sept. 2, 2005). However, there is an exception for asylum seekers who are nationals of countries for which Canada has imposed a temporary suspension of removals. Ibid., Art 6; Immigration and Refugee Protection Regulations, S.O.R./2002, s. 159.6(c). The Haitian asylum seekers fell within this exception, and so they were admitted to Canada to pursue their refugee claims. transportation to the country to those who lack the requisite visas. Because the Haitian asylum seekers presented themselves at the Canadian border without visas, Hinshaw- Thomas was arrested and charged with providing transportation to Canada to a group of more than ten individuals who lack the requisite visas. This offence carries a maximum penalty of life imprisonment and a $1,000,000 fine.114 According to media reports, Canadian immigration authorities defended the decision to lay these charges on the grounds that there "are no exceptions in the law for church-based or other human rights personnel."115

These extremely serious charges brought against a humanitarian worker for helping asylum seekers present themselves at a Canadian port of entry in order to make refugee claims provoked immediate outrage among advocates for refugees. The Canadian Council for Refugees and Amnesty International went so far as to launch a national campaign entitled "Proud to Aid and Abet Refugees"."7 Alex Neve, Secretary General of Amnesty International Canada explained the decision to launch this campaign on the following grounds: Amnesty International is concerned that Canadian law puts humanitarian workers who assist refugee claimants to enter Canada at risk of criminal prosecution...The right to seek asylum is enshrined in international law... [Canada's immigration law provisions on human smuggling] should be reformed to ensure it is not used against individuals who assist refugee 1 1 O claimants for humanitarian reasons. In addition to contending that Canadian visa policy is at odds with Canada's international refugee law obligations, advocates for refugees made two additional

113 See Chapter II, Section 2.3.3. 114 Immigration and Refugee Protection Act, S.C. 2001, c.27 ["IRPA"], s.117. E. Paradis, Canada Border Services Agency spokesperson, cited in "Refugee advocate arrested at border" in the Montreal Gazette, online ed. (25 September 2007) (online: www.canada.com/montrealgazette) (accessed: 20 April 2008). 116 See e.g. N. Keung, "Legal group calls arrest 'indefensible'" in The Toronto Star (1 November 2007) A18; A. Brouwer, M. Goldberg & J. Dench, "Are we all smugglers now?" in The Globe & Mail (9 October 2007) A21; L. Lasalle, "Human-smuggling charge targeting wrong person, refugee lawyer says" in The Globe & Mail (29 September 2007) A14. 117 Canadian Council for Refugees, "Launch of'Proud to Aid and Abet Refugees' Campaign", Press Release (29 November 2007) (online: http://www.ccrweb.ca/eng/media/pressreleases/29nov07.htm) (accessed: 17 April 2008). arguments about the charges brought against Hinshaw-Thomas. First, they noted that in parliamentary debates about the legislative provision in question, assurances were repeatedly provided that the provision was not intended to be used against those acting on humanitarian motives, and that it would only be used to target those seeking to exploit migrants for profit.1 Secondly, advocates for refugees noted that the authorities that laid the charges did not follow the proper procedures. In particular, the immigration law provision in question requires that the Attorney General explicitly authorize any charges brought under the provision - a safeguard that government Members of Parliament pointed to in response to concerns expressed by refugee advocates when the legislation was under debate in parliament. However, in the Thomas-Hinshaw case, the Attorney General did not provide explicit authorization.120

To put these same arguments in Fullerian terms, advocates for refugees contended that, in laying charges against Hinshaw-Thomas, the Canadian government was enforcing a visa policy that aims to circumvent Canada's international refugee law obligations, thereby violating the principles of legality, which hold that laws should be non- contradictory and should not operate at cross purposes. At the same time, advocates for refugees also argued that the government had breached the principles of legality by failing to apply the law as announced, both in terms of failing to follow proper procedures, and in contravening the original stated intent of the parliamentarians who passed the law.

Ultimately, following the public controversy this case generated, charges against Janet Hinshaw-Thomas were dropped. However, it seems to me that one way to identify challenges to legally exceptional extra-territorial forms of border control is to examine in more detail this and similar incidents involving border control law charges

119 Canadian Council for Refugees, "Proud to Aid and Abet Refugees: Backgrounder", Press Release (January 2008) (online: http://www.ccrweb.ca/aidandabet/aidandabetbackgrounder.pdf) (accessed: 17 April 2008) at 3-5. 120 Ibid. See also IRPA, supra note 114, s. 117. N. Keung, "Refugee smuggling charges dropped; Ottawa bows to backers of US aid worker who helped asylum-seekers" in The Toronto Star (9 November 2007) Al 8; U. Gandhi, "Crown drops human smuggling charges; Case prompts calls for changes to law" in The Globe & Mail (9 November 2007) A8. brought against humanitarian workers. Given that the arguments put forward by Hinshaw-Thomas' supporters appear to track quite closely the legal claims made by church sanctuary providers, the approach set out in this dissertation could, I suspect, be applied directly to these incidents. In the end, these possible sites for further research represent, of course, but a few of the many rich locales in which border control laws are contested in contemporary societies. My intention in highlighting them is merely to provide a few examples of how the approach adopted in this dissertation could be helpfully applied to further research. Indeed, it is only as I come to the final stage of my doctoral studies that I have finally realized that finishing one's dissertation represents not an end of a long research project - not one's final word about a particular subject - but rather the beginning of the research projects that define one's academic career.

5.5. Conclusion

In 2001, Dr. Aamer Sultan, an Iraqi refugee claimant speaking from a controversial refugee detention center in the Australian desert said the following of his experience in detention: "After a time, I realized these fences are not to prevent us from escaping - never. No, these fences have been set to prevent you, the Australians, from approaching us."122

In this dissertation I have drawn upon legal geography, interactional legal theory and legal pluralism in order to get a clearer picture of how law becomes distorted when it attempts to build the sorts of fences that Sultan faced when he made these comments, the sorts of fences that prevent citizens and non-citizens from approaching one another. That is to say, I have sought to understand what happens when border control law is used to prevent citizens and non-citizens from governing their self-directed interactions with one another with reference to rules. I have argued, in particular, that by calling attention to - and occasionally resisting - violations of the principles of legality in border control law

Australian Broadcasting Corporation, Four Corners, Online ed. (2001) (online: http://www.abc.net.au/4corners/stories/s344246.htm) (accessed: 15 April 2008). that result from the attempt to act unilaterally upon non-citizens, we can gradually expand the boundaries around our communities. Put in slightly different terms, by examining and challenging legally exceptional forms of border control, we can develop opportunities for citizens and non-citizens to approach one another across the fences that now separate us.123

In trying to shift discussions about border control policy away from what I have called two-step reasoning - away from debates (or divergent assumptions) about the proper boundaries around communities - and towards a critical engagement with the processes that both constitute and expand these boundaries, the approach I have adopted is similar to the one hinted at by Lon Fuller. Recall that, on the only occasion when Fuller wrote in detail about the limits of the moral community, he related the parable of the Good Samaritan: The... Old Testament includes the command: Thou shalt love thy neighbor as thyself. The New Testament tells of an encounter between a lawyer and Jesus that turned on this command. The lawyer, perceiving that the passage contained a point of difficulty, wished to test Jesus' powers of exegesis. He asked, "And who is my neighbor?" On this occasion, Jesus does not answer, "Your neighbor is everyone; you are bound to love all men everywhere, even your enemies. Instead he relates the parable of the Good Samaritan. A certain man had been struck down by thieves and left half dead. Two of his community brothers passed him by without offering aid. Then one of the despised Samaritans - definitely a member of the out group - bound up his wounds and took him into care. Jesus ends with the question: "Which now of these three, thinkest thou, was neighbor unto him that fell among the thieves?" The meaning of this parable is, I believe, not that we should include everyone in the moral community, but that we should aspire to enlarge that community at every 124 opportunity. It seems to me that the approach I have set out in this dissertation represents one promising way to draw upon a sophisticated understanding of law as a form of social

123 In so doing, we will be in compliance with what Lon Fuller called "Natural Law": If I were asked, then, to discern one central indisputable principle of what may be called substantive natural law - Natural Law with capital letters - I would find it in the injunction: Open up, maintain, and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel and desire... And if men will listen, that voice... can be heard across the boundaries and through the barriers that now separate men from one another. (Fuller, MOL, supra note 61 at 186.) 124 Ibid, at 182-183 (emphasis added) 305 order to encourage debates about border control that share this aspiration to enlarge the community at every opportunity.

APPENDIXES

Appendix A: Methodology of Refugee Claim Grant Rate Study

The Immigration and Refugee Board (IRB) maintains a database of all refugee claims they hear. While this database is not directly accessible to the public, the Access to Information Act sets out procedures through which it is possible to obtain some of the information contained in the database. To this end, the data in the present study was obtained through a formal Access to Information Request to the IRB, asking for: the following information for all cases involving principal claimants decided by the Refugee Protection Division of the Immigration and Refugee Board where a decision was mailed to the claimant in 2006: (1) File Number; (2) Claim Type; (3) Claim Type Details; (4) Country of Origin; (5) Gender of the Principal Claimant; (6) Decision; (7) Date the Decision was Mailed; (8) Name of the Board Member.2

In response, the IRB provided a list of the requested information.3 This list was then digitized and extraneous information was filtered out,4 producing a database of 9,984 refugee claims involving principal claimants where a positive or negative decision was mailed to the claimant in 2006. It is worth emphasizing that the database does not include all refugee decisions made in 2006 because the data is restricted only to decisions involving principle claimants. In other words, the database does not include refugee claims made by accompanying partners or dependent children. To put the database into context, according to the United Nations High Commission for Refugees there were 19,827 cases decided at the IRB in 2006, of which 17,369 resulted in positive or negative decisions, with the remainder being otherwise resolved.

1 R.S.C. 1985, c. A-l. ~ S. Rehaag, "Access to Information Request Form" (15 May 2007) (on file with author). 3 E. Villemaire [IRB Director of Access to Information and Privacy], Personal Correspondence dated 21 June 2007, IRB File #: A-2007-00023/de (online: http://www.ccrweb.ca/documents/rehaagdata.htm (accessed: 29 Nov 2007) [IRB, ATIR]. 4 The IRB provided a list of 11,998 records. Of these, 972 involved multiple listings for single claims; 1,017 involved cases that were abandoned, withdrawn or otherwise administratively resolved; and, 25 were records where no information regarding the Board Member was provided. 5 UNHCR, 2006 Provisional Statistical Yearbook Annexes (Geneva: UNHCR, 2007) (online: http://www.unhcr.org/statistics.html) (accessed: 5 July 2007) at Table 7.

307

Appendix B: Grant Rates Among Canadian Refugee Adjudicators in 2006

Variations Between Actual and Expected Grant Rates Adjusted to Reflect Country of Origin (COO) in Principal Claimant Refugee Cases in 2006

Expected Expected Grant Rate Grant Rate Grant Rate Based on Variation Exp. Pos. Board Member Decisions Grant Rate (Excl. Based on IRB Average Variation (Excl. Decisions Expedited) IRB Average for COO Expedited) for COO (Excl. Expedited)

AHLFELD, PAMILA 5 95 60,00 57,78 60,53 55,61 -0,53 2,16 ALI KHAN, AZHAR 50 64,00 64,00 62,04 59,44 1,96 4,56 ALIDINA, SHAMSHUDDIN 107 65,42 65,42 64,47 64,02 0,95 1,40 ALLEGRA, GIOVANNA 22 44 84,09 68,18 64,83 50,96 19,26 17,22 ARCHAMBAULT, DONAL 135 40,00 40,00 54,97 54,25 -14.97 -14,25 ARMSTRONG, MARNIE 88 68,18 68,18 56,95 53,40 11,24 14,78 ARVANITAKIS, DENIS 39 15,38 15,38 50,13 48,50 -34,75 -33,12 AYORECH, BENJAMIN 59 42,37 42,37 58,19 55,01 -15,81 -12,64 B-DUQUE, JEANNINE 1 0,00 0,00 29,41 29,41 -29,41 -29,41 BEAUBIEN-DUQUE, JEAN 1 28 21,43 18,52 57,41 55,09 -35,98 -36,58 BEAUQUIER, JEAN-PIER 49 50 100,00 100,00 79,92 55,66 20,08 44,34 BECKOW, STEPHEN MARK 93 43,01 43,01 52,41 51,76 -9,40 -8,75 BEDARD, JOANNA 82 46,34 46,34 65,36 64,36 -19,02 -18,02 BERGER, BARBARA 88 45,45 45,45 62,34 59,16 -16,89 -13,70 BERRY, CLIFFORD 125 56,80 56,80 58,29 57,21 -1,49 -0,41 BRENNENSTUHL, KEITH 64 71,88 71,88 62,49 61,10 9,38 10,77 BUDACI, STEPHEN 94 46,81 46,81 58,56 57,03 -11,75 -10,22 CASE, COMPLEX 38 71,05 71,05 64,32 61,41 6,73 9,65 CHAKKALAKAL, JETTY 71 80,28 80,28 65,11 64,30 15,17 15,98 CHEVRIER, MARIE 4 67 58,21 55,56 58,83 56,09 -0,62 -0,54 COLLISON, DON 1 0,00 0,00 33,33 33,33 -33.33 -33.33 COOKE, DAVID E. 137 • 51,82 51,82 31,09 30,23 20,74 21,59 COSTA, ANA 11 37 64,86 50,00 62,38 55,63 2,48 -5,63 CRELINSTEN, MICHAEL 66 42,42 42,42 49,94 46,64 -7,52 -4.22 CROPLEY, LAUREL 42 50,00 50,00 56,46 56,05 -6,46 -6,05 CUNNINGHAM, JOAN 64 73,44 73,44 55,74 55,21 17,70 18,23 DAUNS,PAULAH 7 12 75,00 40,00 58,29 40,59 16,71 -0.59 DAVIS, WILLIAM 64 67,19 67,19 54,95 53,37 12,24 13,82 DAWSON, RICHARD 33 41 80,49 0,00 66,22 2,44 14,27 -2.44 DAWSONX, RICHARD 29 30 100,00 100,00 77,19 70,00 22,81 30,00 DEL NEGRO, LUCIANO 22 86,36 86,36 32,31 32,26 54,06 54,11 DELISLE, RUTH 101 45,54 45,54 62,81 59,98 -17.27 -14.43 DEROUSSEAU, TITA 10 39 48,72 31,03 60,14 55,66 -11,42 -24,62 DIALLO, LAMINE 6 66,67 66,67 68,07 65,84 -1,40 0,82 ELLIS, STEVE 130 43,08 43,08 55,42 54,52 -12,35 -11,45 ETHIER, GILLES 138 95,65 95,65 62,61 60,69 33,04 34,96 FAURE, MICHEL 59 22,03 22,03 56,41 53,51 -34,38 -31,47 FECTEAU, DIANE 52 34,62 34,62 56,49 55,60 -21.87 -20.99 FLEURY, JEAN GUY 1 100,00 100,00 55,22 55,14 44,78 44,86 FORBES,CATHRYN 66 60,61 60,61 55,26 54,80 5,35 5,81 FORSEY, DIAN 55 34,55 34,55 47,21 46,60 -12,67 -12,05 FORTIER, JACQUES W. 19 47,37 47,37 58,76 57,93 -11,39 -10,56 FOURNIER, LLOYD 95 47,37 47,37 54,28 52,49 -6.91 -5.12 FRASER, GAYLE 92 43,48 43,48 55,61 53,70 -12,13 -10,22 FREEMAN, KATHLEEN 1 77 57,14 56,58 51,44 50,64 5,70 5,94 FREILICH, MIRIAM 123 13,01 13,01 31,07 29,92 -18.07 -16.92 FRENCH,SUSAN 1 72 76,39 76,06 55,50 54,49 20,89 21,57 GHOSH,SUPARNA 119 9,24 9,24 32,81 31,59 -23,57 -22,34 GIBBS, HEATHER 19 113 76,11 71,28 63,64 58,93 12,47 12,34

309 310

GINSHERMAN, MARTIN 173 202 94,55 62,07 77,05 64,90 17,50 -2,83 GONE, KAMALA-JEAN 10 70,00 70,00 60,55 58,76 9,45 11,24 GOODMAN, BRIAN 18 66,67 66,67 63,97 63,49 2,69 3,17 GOPIE, KAMALA-JEAN 52 73,08 73,08 62,69 59,22 10,38 13,86 GRAFF, AIDA 1 39 48,72 47,37 54,21 51,68 -5,49 -4,31 GRAUB, LEON 21 42,86 42,86 57,42 55,19 -14.56 -12,34 GREWAL, JITI SINGH 15 104 50,96 42,70 60,28 55,39 -9,32 -12,69 GRIFFITH, GEORGE 135 39,26 39,26 51,32 51,03 -12,06 -11,77 GUAY, MARTIAL 1 0,00 0,00 40,00 40,00 -40,00 -40,00 HAMELIN, MICHAEL 108 28,70 28,70 55,46 53,57 -26,76 -24,86 HAYES, MARNIE 60 51,67 51,67 45,33 45,11 6,34 6,55 HEBERT, STEPHANIE 5 42 61,90 56,76 44,76 41,58 17,15 15,18 HITCHCOCK, FRED 54 64,81 64,81 53,05 51,86 11,77 12,95 HODGINS, BARBARA 32 28,13 28,13 48,20 46,76 -20,07 -18,63 HOMSI, ELKE 33 12,12 12,12 31,33 30,29 -19,21 -18,17 HOUDE, ROGER 90 6,67 6,67 32,98 32,88 -26,31 -26,21 HUM, OUEENIE 1 0,00 0,00 53,09 43,84 -53,09 -43,84 IRELAND, JUDY 51 60,78 60,78 60,69 58,91 0,09 1,87 ISRAEL, MILTON 98 64,29 64,29 54,61 54,20 9,67 10,08 JAM, JEAN-GUY 14 35,71 35,71 54,43 53,90 -18,72 -18,18 JOAKIM, CLIVE 29 128 55,47 42,42 62,32 55,45 -6,85 -13,02 JOBIN, MICHEL 47 14,89 14,89 44,59 43,97 -29,70 -29,08 KEMSLEY, THOMAS 14 28,57 28,57 51,61 50,80 -23,04 -22,23 KITCHENER, SUSAN 107 92,52 92,52 55,63 53,71 36,89 38,81 KNEVEL, A. C. 138 29,71 29,71 29,60 28,64 0,11 1,07 LAMONT, DEBORAH 35 37,14 37,14 54,38 49,00 -17,23 -11,86 LANDRY, GIRARD 113 43,36 43,36 32,47 32,41 10,89 10,96 LANG, LAWRENCE 54 48,15 48,15 64,53 61,58 -16,39 -13,43 LAPOMMERAY, JACQUES 133 75,19 75,19 53,53 52,56 21,66 22,63 LEBEL, GUY 119 67,23 67,23 49,33 48,69 17,89 18,54 LECLERCQ, DOMINIQUE 80 91,25 91,25 53,05 51,75 38,20 39,50 LEIGHTON, MARGARET 1 51 49,02 48,00 57,60 53,75 -8,58 -5,75 LEVESQUE, SYLVIE 85 20,00 20,00 36,25 36,07 -16,25 -16,07 LLOYD, CHRISTINE 106 57,55 57,55 62,29 59,89 -4,74 -2,34 MAKONNEN, YILMA 66 69,70 69,70 58,97 53,91 10,72 15,79 MANIOS, GEORGE 98 62,24 62,24 56,66 56,28 5,59 5,96 MCCOOL, CAROLYN 19 57,89 57,89 53,57 52,44 4,33 5,46 MCKENZIE, GORDON 56 17,86 17,86 53,98 50,97 -36,13 -33,11 MEMBER, DCO 2 0,00 0,00 41,08 40,64 -41,08 -40,64 MISIR, AMARNATH 45 71,11 71,11 57,65 55,12 13,46 15,99 MONTGOMERY, JOAN 71 81,69 81,69 60,57 59,12 21,12 22,57 MOORE, BEVERLY 10 50,00 50,00 59,06 55,70 -9,06 -5,70 MORRISH, DEBORAH 37 62,16 62,16 64,04 63,60 -1,88 -1.44 MORTAZAVI, FAHIMEH 67 31,34 31,34 55,16 54,53 -23,82 -23,19 MOSS, JOEL 108 82,41 82,41 51,15 49,86 31,25 32,55 MUTCH,STUART 22 86,36 86,36 55,22 55,14 31,14 31,22 MUTUMA, CHIMBOPOE 98 51,02 51,02 46,41 46,13 4,61 4,89 ODDIE, LILY 128 69,53 69,53 55,95 54,83 13,59 14,70 OSMANE, FARID 31 32,26 32,26 67,09 64,56 -34,83 -32,30 OUIRION, RICHARD 10 16 81,25 50,00 70,98 51,62 10,27 -1.62 OWEN, ROBERT 26 100,00 100,00 55,22 55,14 44,78 44,86 PANAGAKOS, HELENE 56 57,14 57,14 33,26 33,18 23,88 23,96 PATTEE, ROSS 82 52,44 52,44 54,79 54,01 -2,35 -1,57 PELLETIER, JEAN-PAUL 81 82,72 82,72 58,84 56,39 23,88 26,32 PERGAT, LUDMILA 11 0,00 0,00 40,93 39,78 -40.93 -39,78 PINKNEY, THOMAS 160 75,63 75,63 53,77 53,13 21,86 22,49 PIRBAY, JOULEKHAN 72 56,94 56,94 35,53 35,20 21,42 21,74 POPATIA, BERZOOR 6 13 84,62 71,43 78,39 67,81 6,23 3,61 PRABHAKARA, PUTTAVEE 120 50,00 50,00 55,13 54,61 -5,13 -4,61 PREVOST, JEAN 101 20,79 20,79 41,37 40,92 -20,58 -20,13 PROCESSUS, ACCELERE 36 36 100,00 N/A 79,74 N/A 20,26 N/A QUIRION, RICHARD 120 145 91,03 48,00 72,51 56,73 18,53 -8,73 311

RAILTON, JAMES 72 51,39 51,39 60,36 56,98 -8,97 -5,59 RANDHAWA, SAJJAD 46 2,17 2,17 60,06 57,09 -57,89 -54,92 RANDHAWA, SARWANJIT 84 19,05 19,05 57,90 51,34 -38,85 -32,29 RANGAN, VEDA 115 39,13 39,13 31,88 31,25 7,25 7,88 ROBIC, LOUISE 88 37,50 37,50 46,35 45,66 -8,85 -8,16 ROBINSON, GERRY 65 67,69 67,69 55,53 55,21 12,16 12,49 ROBITAILLE, PAULE 118 27,12 27,12 42,47 42,03 -15,35 -14,91 ROSS, HAZELYN 8 12,50 12,50 60,55 60,25 -48,05 -47,75 ROSS, MICHAEL 40 65,00 65,00 54,80 53,76 10,20 11,24 ROY, SYLVIE 1 0,00 0,00 31,22 31,16 -31,22 -31,16 RUGGERO, ALFONSO 70 62,86 62,86 53,72 53,16 9,14 9,70 SAJTOS, JOANNE 10 149 53,02 49,64 56,66 52,45 -3,64 -2.81 SANDHU,KEN 4 111 31,53 28,97 60,22 56,46 -28,69 -27,49 SANDHU,RANDY 1 1 100,00 N/A 72,73 N/A 27,27 N/A SAVAGE, HARVEY 12 162 66,05 63,33 64,86 60,72 1,19 2,62 SHECTER,TRUDY 109 48,62 48,62 43,07 42,11 5,55 6,51 SHORT, WILLIAM 88 71,59 71,59 59,87 59,26 11,73 12,33 SIDDIQUE, K. 3 66,67 66,67 62,38 60,92 4,29 5,74 SIDDIQUI, YASMEEN 19 68,42 68,42 57,06 56,12 11,37 12,30 SILVESTRI, ANNA-MARI 77 75,32 75,32 63,32 61,00 12,01 14,33 SMITH, DIANE 43 37,21 37,21 59,38 56,14 -22,18 -18.93 SMITH-GORDON, MAUREE 67 85,07 85,07 58,94 58,36 26,13 26,72 SOMERS, MICHAEL 77 53,25 53,25 56,71 56,35 -3,46 -3,10 SPECIAL CTRY 2 0,00 0,00 35,94 35,94 -35,94 -35,94 STANWICK, NINA 76 73,68 73,68 61,26 60,84 12,43 12,84 TABIBZADEH, NASRIN 37 78,38 78,38 52,32 47,52 26,06 30,86 TERRANA, ANNA 15 46,67 46,67 53,74 52,66 -7,07 -6,00 THOMAS, STEPHANIE 33 24,24 24,24 51,32 51,01 -27,08 -26,77 TINKER, DIANE 156 50,00 50,00 56,12 55,21 -6,12 -5,21 TSHISUNGU, JOSE 25 64,00 64,00 64,03 62,50 -0,03 1,50 TSHISUNGU, JOSEW.T. 39 41,03 41,03 52,43 ' 50,79 -11,40 -9,77 UPPAL, ATAM 12 83,33 83,33 59,74 55,63 23,59 27,70 VALERIANO, PATRICE 88 31,82 31,82 38,72 37,64 -6,90 -5,82 VENNE, MICHEL 38 78,95 78,95 66,98 64,28 11,97 14,67 VENTON, ANNE 23 26,09 26,09 50,42 47,58 -24,34 -21,49 VIENNE, MICHEL 55 78,18 78,18 63,82 61,91 14,36 16,27 WANG, GEORGE 60 55,00 55,00 59,07 58,35 -4,07 -3,35 WEIR, MARGARET 128 16,41 16,41 30,35 29,21 -13,94 -12,80 WILSON, WILBERT 72 16,67 16,67 52,24 51,72 -35,58 -35,06 WONG, BING 68 11,76 11,76 27,36 26,33 -15,60 -14,57 WRIGHT, PHILOMEN 1 0,00 0,00 20,75 20,75 -20.75 -20,75 Total at IRB in 2006 615 9984 54,08 51,06 54,08 51,06 N/A N/A

BIBLIOGRAPHY

Jurisprudence

Australia

Al-Kateb v. Godwin, [2004] HCA 37.

Chu KhengLim v. Minister for Immigration (1992), 110 A.L.R. 97 (H.C.A.).

Mayer v. Minister for Immigration and Ethnic Affairs (1984), 4 FCR 312 (F.C.A.).

Plaintiff SI 57/2002 v. Commonwealth (2003), 211 CLR 476 (H.C.A.).

Re Bolton & Another; Ex parte Beane (1987), 162 CLR 514 (H.C.A.).

Ruddock v. Vadarlis (2001), 110 F.C.R. 452 (F.C.A.).

Ruhani v. Director of Police, [2005] HCA 42.

Victorian Council for Civil Liberties Inc. v. Minister for Immigration and Multicultural Affairs (2001), 110 F.C.R. 452 (F.C.).

Canada

Baker v. Canada, [1999] 2 S.C.R. 817.

Canada (A.G.) v. Cain, [1906] A.C. 542 (P.C.).

Canada (M.E.I.) v. Chiarelli, [1992] 1 S.C.R. 711.

Canadian Council for Refugees v. The Queen (2007), 2007 FC 1262 (F.C.T.D.).

Calles v. Canada (M.E.I.) (1990), 12 Imm. L.R. (2d) 48 (F.C.A.).

Dehghaniv. Canada (M.E.I.), [1993] 1 S.C.R. 1053.

Edwards v. Canada (A.G.), [1930] A.C. 124 (P.C.).

Gonzalez v. Canada (M.E.I.) (1991), 14 Imm. L.R. (2d) 51 (F.C.A.).

In the matter of a Reference as to the Meaning of the Word 'Persons" in Section 24 of the British North America Act, 1867, [1928] S.C.R. 276.

Kazi v. Canada (M.C.I.), [2003] F.C.J. No. 1212 (QL) (F.C.T.D.).

313 KLMRoyal Dutch Airlines v. Canada (S.G.), [2004] F.C.J. No. 355 (QL) (F.C.T.D.).

Medovarski v. Canada (M.C.I.), [2005] 2 S.C.R. 539.

Mitchell v. Canada (M.N.R.), [2001] 1 S.C.R. 911.

Nguyen v. Canada (M.E.I.) (1993), 18 Imm. L.R. (2d) 165 (F.C.A.). ft v. A, [1990] 1 S.C.R. 995.

R v. Alegria (1992), 96 Nfld. & P.E.I.R. 128 (Nfld. C.A.). ft v. Cwmm, [1978] 1 W.W.R. 255 (Alta. S.C. (A.D.))

R. v. Deutsche Lufthansa Aktiengesellschaft (c.o.b. Lufthansa German Airlines), [1994] O.J. No. 1618 (QL) (Ont. C.A.).

R. v. Greyeyes, [1997] 2 S.C.R. 825.

R. v. Hamilton, [2005] 2 S.C.R. 432.

R. v. Monney (1997), 153 D.L.R. (4th) 617 (Ont. C.A.).

R. v. Monney [1999], 1 S.C.R. 652.

Singh v. Canada (M.E.I.), [1985] 1 S.C.R. 177.

Suresh v. Canada (M.C.I.), [2002] 1 S.C.R. 3.

Tiwaah v. KLM Dutch Airlines, [1998] O.J. No. 1338 (QL) (Ont. C.A.).

United States v. Burns, [2001] 1 S.C.R. 283.

Xie v. Canada (M.E.I.) (1990), 10 Imm. L.R. (2d) 284 (F.C.A.).

Nauru

Amiri v. Director of Police, [2004] NRSC 1.

South Africa

Minister of Home Affairs and Others v. Watchenuka and Another, 2004 (2) BCLR 120 (S!C.A.). United Kingdom

A and others v. Secretary of State for the Home Department, [2005] 2 AC 68.

R. v. Secretary of State for the Home Department, Exp Hoverspeed, [1999] INLR 591.

Regina v. Immigration Officer at Prague Airport and another ex parte European Roma Rights Centre and others, [2004] UKHL 55.

Somerset v. Stewart (1772), 98 ER 499.

United States

Almeida-Sanchez v. United States, 413 U.S. 266 (1973).

American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991).

Carlson, et al. v. Landon, 342 U.S. 524 (1952).

Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412 (11th Cir. 1995).

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498 (11th Cir. 1992).

Fong Yue Ting v. United States, 149 U.S. 698 (1893).

Nishimura Ekiuv. United States, 142 U.S. 651 (1891).

Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471 (1991).

Sale v. Haitian Ctrs. Council, 509 U.S. 155 (1993).

Shaughnessy v. United States, 345 U.S. 206 (1953).

Sierra v. Romaine, 341 F.3d 559 (3d Cir. 2003).

Socorro Pardo v. United States, 498 U.S. 1046 (1991).

United States ex rel. Knauffv. Shaughnessy, 338 U.S. 537 (1950).

United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989).

United States v. Ju Toy, 198 U.S. 253 (1905).

United States v. LaFroscia, 485 F.2d 457 (2d Cir. 1973). United States v. Sanders, 663 F.2d 1 (2d Cir. 1981).

Zadvydas v. Davis, 533 U.S. 678 (2001).

International

Amuur v. France, [1996] ECHR 25 (25 Jun 1996).

Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), [1986] I.C.J. Rep. 14.

Conka v. Belgium, App. No. 51564/99, 34 Eur. H.R. Rep. 1298 (2002).

Legislation & Regulations

Ancient Rome

Codex Justinianus (CE 529).

Codex Theodosianus (CE 438).

Australia

Border Protection Bill 2001, Bills Digest No. 41 (as introduced in the House of Representatives: 29 Aug 2001).

Border Protection (Validation and Enforcement Powers) Act 2001 (Cth).

Commonwealth of Australia Constitution Act, 1901 (U.K.), 63 & 64 Victoria, c. 12.

Migration Act 1958 (Cth).

Nauru (High Court Appeals) Act 1976 (Cth).

Canada

Access to Information Act, R.S.C. 1985, c. A-l.

Bill C-280, An Act to Amend the Immigration and Refugee Protection Act (coming into force of sections 110, 111 and 171), 1st Sess., 39th Pari., 2007 (as passed by the House of Commons: 30 May 2007).

Bill C-50, Budget Implementation Act, 2008, 2,K| Sess., 39Ul Pari., 2008 (First reading: 14 Mar 2008). Canadian Bill of Rights, R.S.C. 1970, App. III.

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

Canadian Society of Immigration Consultants, Rules of Professional Conduct.

Code de deontologie des avocats, R.R.Q. c. B-l.

Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5.

Criminal Code, R.S.C. 1985, c. C-46.

Immigration Act, R.S.C. 1985, c. 1-2 (repealed).

Immigration and Refugee Protection Act, S.C. 2001, c.27.

Immigration and Refugee Protection Regulations, S.O.R./2002-227.

Law Society of Upper Canada, Rules of Professional Conduct (Ont.).

Ontario Works Act, S.O. 1997, C. 25.

Ontario Works Regulations, O. Reg. 134/98.

Order Fixing June 28, 2002 as the Date of the Coming into Force of Certain Provisions of the Act, SI/2002-97, C. Gaz. 1997.11.1637.

Catholic Church

Bullarium romanum, Tom.9, Torino, 1865.

Codex Iuris Canonici, 1917

Decretum Gratiani, 1139.

France

Decret n°91-902 du 6 septembre 1991 portantpublication de Vordonnance n° 45-2658 du 2 novembre 1945 modi fee relative aux conditions d 'entree et de sejour des etrangers en France, J.O., 13 Sept 1991. Nauru

Constitution of Nauru (1968) (WorldLII).

Immigration Act 1999 (WorldLII).

United Kingdom

Human Rights Act 1998, c. 42.

Nationality, Immigration and Asylum Act 2002, c. 41.

Statute 21, James I, Ch. 28 s.7 (1623).

United States

Aliens and Nationality, 8 U.S.C.

Crimes and Criminal Procedure, 18 U.S.C.

U.S., Bill H.R. 2182, For the relief of Elvira Arellano, Juan Carlos Arreguin, Martin Guerrero Barrios, Maria..., \\0U Cong., 2007.

U.S., Bill H.R.4437, Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005, 109th Cong., 2005.

International Legal Instruments

International Human Rights Instruments

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), 1465 U.N.T.S. 85.

Council Directive 2003/86/EC, On the right to family reunification, 2003 O.J. (L 251).

European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), 213 U.N.T.S. 222

Human Rights Committee, General Comment No. 10 (Article 23), 39n Session, 1990, HRI/GEN/Rev 4.

Protocol Relating to the Status of Refugees (1967), 606 U.N.T.S. 267.

Universal Declaration of Human Rights (1948), GA Res. 217(111), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810. UN Convention Relating to the Status of Refugees (1951), 189 U.N.T.S. 137.

Other International Treaties & Agreements

Canada-US Safe Third Country Agreement (2002).

US-Haiti Agreement Effected by Exchange of Notes (1981), T.I.A.S. No. 10,241.

Trusteeship Agreement for the Territory of Nauru (1947), 10 U.N.T.S. 3.

Secondary Materials

Monographs

Abella, I. & Troper, H., None is Too Many: Canada and the Jews of Europe, 1933-1948, 3rd ed. (Toronto: Key Porter, 2000).

Agamben, G., Homo Sacer: Sovereign power and bare life (Stanford: Stanford U.P., 1998).

, State of Exception (Chicago: U. Chicago P., 2005).

Arnaout, G., Asylum in the Arab-Islamic Tradition (Geneva: UNHCR, 1987).

Bash, L. et al (eds.), Nations Unbound: Transnational projects, postcolonial predicaments and deterritorialized nation-states (New York: Gordon & Breach, 1994).

Bau, I., This Ground is Holy: Church sanctuary and Central American refugees (New York: Paulist P., 1985).

Beiner, R. & Nedelsky, J. (eds.), Judgment, Imagination and Politics: Themes from Arendt and Kant (Lanham, Maryland: Rowman & Littlefield, 2001).

Beitz, C, Political Theory and International Relations (Princeton: Princeton U.P., 1979).

Benhabib, S., The Rights of Others: Aliens, residents and citizens (Cambridge: Cambridge U.P., 2004).

Binford, L., The El Mozote Massacre: Anthropology and human rights (Tuscon: U. Arizona P., 1996).

Blomley, N., law, Space and Geographies of Power (New York: Guilford, 1994).

Borrows, J., Recovering Canada: The resurgence of indigenous law (Toronto: U. Toronto P., 2003). Bosniak, L., The Citizen and the Alien (Princeton: Princeton U.P., 2006).

Bretherton, L., Hospitality as Holiness: Christian witness amid moral diversity (Aldershot, England: Ashgate, 2006).

Brimelow, P., Alien Nation: Common sense about America's immigration disaster (New York: Random House, 1995).

Brouwer, E. et al. (eds.), Immigration, Asylum and Terrorism: A changing dynamic in European law (Nijmegen: Centre for Migration Law, 2003).

Buchanan, P., State of Emergency: The third world invasion and conquest of America (New York: Thomas Dunne Books, 2006).

Butler, J., Precarious Life: The powers of mourning and violence (London: Verso, 2004).

Butler, J. & Scott, J. (eds.), Feminists Theorize the Political (New York: Routledge, 1992).

Byers, M. & Nolte, G. (eds.), United States Hegemony and the Foundations of International Law (Cambridge: Cambridge U.P., 2003).

Cartier, G., Reconceiving Discretion: From discretion as power to discretion as dialogue (S.J.D. Thesis, University of Toronto, Faculty of Law, 2004) [unpublished].

Cox, J., The Sanctuaries & Sanctuary Seekers of Mediaeval England (London: George Allen & Sons, 1911).

Crampton, J. & Elden, S. (eds.), Space, Knowledge and Power: Foucault and Geography (London: Ashgate, 2007).

Crepeau, F. et al (eds.), Forced Migration and Global Processes: A view from forced migration studies (Lanham: Lexington, 2006).

Crock, M. (ed.), Protection or Punishment: The detention of asylum seekers in Australia (Annandale, NSW: The Federation P., 1993).

Cunningham, FL, God and Caesar at the Rio Grande: Sanctuary and the politics of religion (Minneapolis: U. Minnesota P., 1995).

Daniels, R. et al. (eds.), The Security of Freedom: Essays on Canada's anti-terrorism bill (Toronto: U of T Press, 2001).'

Danner, M., The Massacre at El Mozote: A Parable of the Cold War (New York: Vintage Books, 1994).

Dauvergne, C, Humanism, Identity, and Nation: Migration laws in Canada and Australia (Vancouver: UBC P., 2005). Dicey, A., An Introduction to the Study of the Law of the Constitution, 10 1 ed (London: McMillan, 1995).

Dow, M., American Gulag: Inside U.S. immigration prisons (Berkley: U. Calif. P., 2004).

During, S., Foucault and Literature: Towards a genealogy of writing (New York: Routeledge, 1992).

Dworkin, R., Law's Empire (Cambridge: Belknap P., 2001).

, Taking Rights Seriously (Boston: Harvard U.P., 2008).

Dyzenhaus, D., The Constitution of Law: Legality in a time of emergency (Cambridge: Cambridge U.P., 2006).

, Hard Cases in Wicked Legal Systems (Oxford: Clarendon P., 1991).

(ed.), The Unity of Public Law (Oxford: Hart Publishing, 2004).

Eliadis, P. et al (eds.) Designing Government: From Instruments to Governance (Montreal: McGill-Queen's U.P., 2004).

Elmadmad, K., Asile et refugies dans les pays afro-arabes (Casablanca: Editions EDDIF, 2002).

Ewick, P. & Silbey, S., Common Place of Law: Stories from everyday life (Chicago: U. Chicago P., 1998)

Finis, J., Natural Law and Natural Rights (Oxford: Clarendon, 1980).

Fitzpatrick, J., Human Rights Protections for Refugees, Asylum-Seekers and Internally Displaced Persons (New York: Transnational Publishers, 2002).

Foucault, M. (ed.), Power /Knowledge (New York: Pantheon, 1980).

Fuller, L., Anatomy of Law (New York: Praeger, 1968).

, Basic Contract Law (St. Paul, Minn.: West Publishing, 1947).

, Legal Fictions (Stanford: Stanford U.P., 1967).

, The Morality of Law, Rev 'd. ed. (New Haven: Yale U.P., 1969).

Glenn, H., Strangers at the Gate: Refugees, illegal entrants and procedural justice (Montreal: Les editions Yvon Blais, 1998).

Goodwin-Gill, G., The Refugee in International Law (Oxford: Oxford U.P., 1983). Guild, E. & Baldaccini, A. (eds.), Terrorism and the Foreigner: A decade of tension around the rule of law in Europe (Boston: Martinus Nijhoff, 2007).

Habermas, J., Between Facts and Norms: Contributions to a discourse theory of law and democracy (Cambridge: MIT P., 1996).

Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford: Oxford U.P., 1994).

Hathaway, J., The Rights of Refugees Under International law (Cambridge: Cambridge U.P., 2005).

Hayek, F., The Road to Serfdom (London: IEA, 2001).

Hewart, G., The New Despotism (London: E. Benn, 1945).

Hogg, P., Constitutional Law of Canada, Student Ed. (Toronto: Thomson-Carswell, 2004).

Immerman, R., The CIA in Guatemala: The foreign policy of intervention (Austin: U. Texas P., 1982).

Johnston, H., The voyage of the Komagata Maru: The Sikh challenge to Canada's colour bar (Oxford: Oxford U.P., 1979).

Jonas, S., The Battle for Guatemala: Rebels, death squads, and U.S. Power (Boulder: WestviewP., 1991).

Kelley, N. & Trebilcock, M., The Making of the Mosaic: A history of Canadian immigration policy (Toronto: U. of Toronto P., 1998).

King, T. (ed.), One Good Story, that One (Toronto: Harper Collins, 1993).

, The Truth About Stories: A native narrative (Toronto: Anansi P., 2003).

Lippert, R., Sanctuary, Sovereignty, Sacrifice: Canadian sanctuary incidents, power, and law (2005: Vancouver, UBC P.).

MacDonald, G., Where the Mountains Meet the Prairies: A history of Waterton County (Calgary: U. Calgary P., 2000).

Macdonald, R., Lessons of Everyday Law (Montreal: McGill-Queen's U.P., 2002).

Martel, Y., The Life of Pi: A novel (Toronto: Random House, 2001).

McDaniel, C. & Gowdy, J., Paradise for Sale (Los Angeles: U. California P., 2000).

Neocleous, M., Imagining the State (Maidenhead: Open U.P., 2003). Neuman, G., Strangers to the Constitution: Immigrants, borders and fundamental law (New Jersey: Princeton U.P., 1996).

Omelaniuk, I. et al, World Migration 2005: Costs and benefits of international migration (Geneva: International Organization for Migration, 2006).

Ong, S., Buddha is Hiding: Refugees, citizenship & the new America (Los Angeles: U. Calif. P., 2003).

Pohl, C, Making Room: Recovering hospitality as a Christian tradition (Grand Rapids, Mich.: W.B. Eerdmans, 1999).

Rabinow, P. (ed.), The Foucault Reader (New York: Pantheon, 1984).

Rawls, J., The Law of Peoples (Cambridge: Harvard U.P., 2001).

, Political Liberalism, Expanded Ed. (New York: Columbia U.P., 2005).

, A Theory of Justice (Cambridge: Belknap P., 1971).

Raz, J., The Authority of Law (Oxford: Clarendon P., 1979).

Richmond, A., Global Apartheid: Refugees, racism, and the new world order (Oxford: Oxford U.P., 1994).

Rigsby, K., Asylia: Territorial inviolability in the Hellenistic world (Vancouver: UBC P., 1996).

Robinson, N., Convention Relating to the Status of Refugees: A commentary (New York: Institute of Jewish Affairs, 1953).

Roskam, K., Apartheid and Discrimination (Amsterdam: Leyden, A.W. Sythoff, 1960).

Rudolph, S. & Piscatori, J. (eds.), Transnational Religion and Fading States (Boulder, CO: Westview P., 1997).

Said, E., Orientalism (New York: Pantheon Books, 1978).

Santos, B. de Sousa, Toward a New Legal Common Sense, 2m ed. (London: Butterworths, 2002).

Schiller, N. et al (eds.), Towards a Transnational Perspective on Migration (New York: New York Academy of Sciences, 1992).

Schmitt, C, The Concept of the Political (Chicago: U. Chicago P., 1996).

Simon, J., The Economic Consequences of Migration (Ann Arbor: U. Michigan P. 1999). 324

Soja, E., Postmodern Geographies: The reassertion of space in critical social theory (London: Verso, 1989).

Summers, R., Lon L. Fuller (London: Edward Arnold, 1984).

Thomas, G. & Morgan-Witts, M., The Voyage of the Dammed (Loughborough, England: Motorbooks International, 1994).

Turkle, S., Life on the Screen: Identity in the age of the Internet (New York: Simon & Schuster, 1995).

Vattel, E. de, Law of Nations (Philadelphia: T. & J. W. Johnson, 1854).

Walzer, M., Spheres of Justice: A defense of pluralism and equality (New York: Basic Books, 1983).

Ward, P., White Canada Forever (Montreal: McGill-Queen's U.P., 1990).

Winston, K. (ed.), The Principles of Social Order: Selected Essays of Lon L. Fuller, Rev'd. ed. (Oxford: Hart Publishing, 2001).

Witteveen, W., (ed.), Rediscovering Fuller: Essays on implicit law and institutional design (Amsterdam: Amsterdam U.P., 1999).

Yarnold, B., Refugees Without Refuge: Formation and failed implementation of U.S. political asylum policy in the 1980's (Lanham, Md.: U.P. of America, 1990).

Articles

Aaltola, M., "The International Airport: The hub-and-spoke pedagogy of the American empire" (2005) 5 Global Networks 261.

Agnew, J., "Mapping Political Power Beyond State Boundaries: Territory, identity, and movement in world politics" (1999) 28 Millennium 499.

Aiken, S., "Manufacturing Terrorists: Refugees, national security and Canadian law" (2001) 19:4 Refuge 116.

Anaya, T., "Sanctuary: Because there are still many who wait for death" (1986) 15 Hofstra L. Rev. 101.

Aoki, K. & Chang, S., "Centering the Immigrant in the Inter/National Imagination" (1997) 85 California L. Rev. 1395.

Anghie, A., '"The heart of my home': Colonialism, environmental damage, and the Nauru case" (1993) 34 Harv. Int'l L.J. 445. Anker, D. et al, "Crisis and Cure: A reply to Hathaway/Neve and Schuck" (1998) 11 Harv. Hum. Rts. J. 295.

Balin, A., "Changes in Immigration Law and Practice After September 11: A practitioner's perspective" (2005) 30 Can.-U.S. L.J. 161.

Bashi, V., "Globalized Anti-Blackness: Transnationalizing western immigration law, policy, and practice" (2004) 24:4 Ethnic & Racial Studies 584.

Berman, P., "From International Law to Law and Globalization" (2005) 43 Colum. J. Transnat'l L. 485

Berger, B., "Our evolving Judicature: Security certificates, detention review, and the Federal Court" (2006) 39 U.B.C. L. Rev. 101.

Bezdek, B., "Religious Outlaws: Narratives of legality and the politics of citizen interpretations" (1995) 62 Tenn. L. Rev. 899.

Bhuta, N. & Costello, G., "Global Apartheid? Controlling immigration in the global village" (2001) 54 Arena Magazine 31.

Borjas, G., "The Economic Benefits from Immigration" (1995) 9 J. of Economic Perspectives 3.

Bouillion, A., "Transitions et logiques territoriales en afrique du sud: races, (im)migrations, territories et reseaux" (1999) 29:2 Espace geographique 111.

Bosniak, L., "Human Rights, State Sovereignty and the Protection of Undocumented Migrants Under the International Migrant Workers Convention" (1991) 25 Int'l Migration Rev. 737.

Brouwer, A. & Kumin J., "Interception and Asylum: When migration control and human rights collide" (2003) 21:4 Refuge 6.

Brunnee, J. & Toope, S., "International Law and Constructivism: Elements of an interactional theory of international law" (2000) 39 Colum. J. Transnat'l L. 19.

Carens, J., "Aliens and Citizens: The case for open borders" (1987) 49 Rev. of Politics 251.

, "Cosmopolianism, Nationalism, and Immigration" in Beiner, R. & Norman, W. (eds.), Canadian Political Philosophy (Oxford: Oxford U.P., 2001) 17.

Cairo, J., "Sanctuary: The resurgence of an age-old right or a dangerous misinterpretation of an abandoned ancient privilege?" (1986) 54 U. Cin. L. Rev. 747.

Castles, S., "Towards a Sociology of Forced Migration and Social Transformation" (2003) 37 Sociology 13. Cholewinski, R., "Economic and Social Rights of Refugees and Asylum Seekers in Europe" (2000) 14 Geo. Immgr. L.J. 709.

Christian, B., "Visa Policy, Inspection and Exit Controls: Transatlantic perspectives on migration management" (1999) 14 Geo. Immig. L.J. 215.

Colbert, D, "Trial Without Jury: A government's weapon against the Sanctuary Movement" (1986) 15 Hofstra L. Rev. 5.

Coleman, N., "Non-Refoulement Revised: Renewed review of the status of the principle of non-refoulement as customary international law" (2003) 5 Eur. J. Migr. & L. 23.

Corbett, J., "Sanctuary, Basic Rights, and Humanity's Fault Lines: A personal essay" (1988) 5:1 Weber Studies, online: http://weberstudies.weber.edu/archiveA.htm (accessed: 21 Feb 2007).

Coutin, S., "The Oppressed, the Suspect, and the Citizen: Subjectivity in competing accounts of political violence" (2001) 26 Law & Soc. Inquiry 63.

, "Smugglers or Samaritans in Tuscon, Arizona: Producing and contesting legal

truth" (1995) 22 American Ethnologist 549.

Cover, R., "Nomos and Narrative" (1983) 97 Harv. L. Rev. 4.

Crepeau, F., "International Cooperation on Interdiction of Asylum Seekers: A global perspective" (1998), online: www.web.net/~ccr/intercrepeau.htm) (accessed: 29 Jul 2004). Crepeau F. & Dench, J., "Interdiction at the Expense of Human Rights: A long-term containment strategy" (2003) 21 Refuge 4.

Crock, M, "In the Wake of Tampa: Conflicting visions of international refugee law in the management of refugee flows" (2003) 12 Pac. Rim L. & Pol'y 49.

Dauvergne, C, "Amorality and Humanitarianism in Immigration Law" (1999) 37 Osgoode Hall L.J. 597

, "Evaluating Canada's New Immigration and Refugee Protection Act in Its Global Context" (2003) 41 Alta L. Rev. 725.

Delaney, D., "Semantic Ecology and Lexical Violence: Nature at the limits of law" (2001) 5 Law Text Culture 77.

Dudziak, M., "Legal Borderlands: Law and the construction of American borders" (2005) 57 American Quarterly 593. Dworkin, R., "Philosophy, Morality, and Law - Observations prompted by Professor Fuller's Novel Claim" (1965) 113 U. Pens. L.R. 668.

Dyzenhaus, D., "Law as Justification: Etienne Mureinik's conception of legal culture" (1998) 14S.A.J.H.R. 11.

Dyzenhaus, D. & Fox-Decent, E., "Rethinking the Process/Substance Distinction: Baker v. Canada" (2001) 51 U. Toronto L.J. 193.

Earnest, D., "Noncitizen Voting Rights: Extending the franchise in the United States" (2003) 92 National Civic Rev. 57.

Ferejohn, J. & Pasuino, P., "The Law of the Exception: A typology of emergency powers" (2004) 2 International Journal of Constitutional Law 210.

Fitzpatrick, J., "Revitalizing the 1951 Refugee Convention" (1996) 9 Harv. Hum. Rts. J. 229.

, "Sovereignty, Territoriality, and the Rule of Law" (2002) 25 Hastings Int'l & Comp. L. Rev. 303.

Ford, R., "The Boundaries of Race: Political geography in legal analysis" (1994) 107 Harv. L.R. 1841.

, "Law's Territory (A History of Jurisdiction)" (1998) 97 Mich. L. Rev 843.

Forest, B., "Placing the Law in Geography" (2000) 28 Historical Geography 5.

Foucault, M., "Of Other Spaces" (1986) Diacritics 22.

Fuller, L., "Adverse Possession: Occupancy of another man's land under mistake as to location of a boundary" (1928) 7 Or. L. Rev. 329.

, "The Case of the Speluncean Explorers" (1949) 62 Harv. L. Rev. 616.

, "Consideration and Form" (1941) 41 Colum. L. Rev. 799.

, "The Forms and Limits of Adjudication" (1978) 92 Harv. L. Rev 353.

, "Freedom as a Problem of Allocating Choice" (1968) 112:2 Proceedings of the American Philosophical Society 101. , "Governmental Secrecy and the Forms of Social Order" in Freidrich, C. (ed.),

Community: Nomos II (New York: Liberal Arts P., 1959).

, "Human Interaction and the Law" (1969) 14 Am. J. Juris. 1.

, "Irrigation and Tyranny" (1965) 17 Stan. L. Rev. 1021. , "Legal Fictions" (1930) 25 Illinois L. Rev. 363.

, "Mediation: Its forms and functions" (1971) 44 S. Cal. L. Rev. 305.

, "Positivism and Fidelity to Law - A reply to Hart" (1958) 71 Harv. L. Rev. 630.

, "A Reply to Professors Cohen and Dworkin" (1965) 10 Villanova L. Rev. 655.

Fuller, L. & Perdue, W., "The Reliance Interest in Contract Damages" (1936-1937) 46 Yale L.J. 52.

Gallagher, S., "Canada's Dysfunctional Refugee Determination System: Canadian asylum policy from a comparative perspective" (2003) 78 Fraser Institute's Public Policy Sources 1.

Galloway, D., "The Extraterritorial Application of the Charter to Visa Applicants" (1991) 23 Ottawa L.R. 335.

Gibney, M., "United States's Responsibility for Gross Levels of Human Rights Violations in Guatemala from 1954 to 1996" (1997) 7 J. Transnat'l L. & Pol'y 77.

Gibney, M. & Hansen, R., "Asylum Policy in the West: Past trends, future possibilities" (2003) World Institution for Development Economics Research Discussion Paper No. 2003/68.

Gold, M., "Constitutional Scholarship in Canada" (1985) 23 Osgoode Hall L.J. 495.

Goodwin-Gill, S., "Refugees and Responsibilities in the Twenty-First Century: More lessons learned from the south pacific" (2003) 12 Pac. Rim L. & Pol'y 23.

Gottlieb, D., "Law-Free Zones" (2005) 15 Kan. J.L. & Pub. Pol'y 7.

Green, D. & Green, A., "The Economic Goals of Canada's Immigration Policy, Past and Present" (1999) 24:4 Canadian Public Policy 425.

Grey, J., "Comment on Singh v. Minister of Employment an Immigration" (1986) 31 McGill L.J. 496.

Griffiths, J., "What is Legal Pluralism?" (1986) 24 J. of Legal Pluralism 1.

Hallebeek, J., "Church asylum in late Antiquity: Concession by the Emperor or competence of the Church?" in Coppens, E. (ed.), Secundum lus: Opstellen aangeboden aan prof. mr. P.L. Neve (2004) 163, online: http://dare.ubvu.vu.n1/bitstream/l 871/9006/1/church+asylum.pdf (accessed: 4 Feb 2007).

Hart, H.L.A., "Book Review - The Morality of Law" (1965) 78 Harv. L. Rev. 1281. , "Positivism and the Separation of Law and Morals" (1958) 71 Harv. L. Rev. 593.

Hathaway, J., "Refugee Law is not Immigration Law" in World Refugee Survey 2002 (Washington: US Committee for Refugees, 2002) 38.

Hathaway, J. & Neve., A., "Making International Refugee Law Relevant Again: A proposal for collectivized and solution-oriented protection" (1997) 10 Harv. Hum. Rts. J. 115.

Hennesey, J., "Right of Sanctuary—Then and Now" (1971) 125 America 482.

Hirst, P., "Foucault and Architecture" (1993) 26 AA Files 44.

Howard, J., "To Deter and Deny: Australia and the interdiction of asylum seekers" (2003) 21:4 Refuge 35.

Iredale, R., "The Internationalization of Professionals and the Assessment of Skills: Australia, Canada and the US" (2002) 16 Geo. Immigr. L.J. 797.

Kanstroom, D., "Criminalizing the Undocumented: Ironic boundaries of the post- September 11th 'Pale of Law'" (2004) 29 N.C.J. Int'l L. & Com. Reg. 639.

Kerwin, D., "The Use and Misuse of'National Security' Rationale in Crafting U.S. Refugee and Immigration Policies" (2005) 17 Int'l J. Refugee L. 749.

Kesby, A., "The Shifting and Multiple Border and International Law" (2007) 27 Oxford J. of Legal Studies 101.

Khan, I, "Trading in Human Misery" (2003) 12 Pac. Rim L. & Pol'y 9.

Kini, T., "Sharing the vote: noncitizen voting rights in local school board elections" (2005) 93 Calif. L.Rev. 271.

Kneebone, S., "The Pacific Plan: The Provision of'Effective Protection'?" (2006) 8 Int'l J. Refugee L. 696.

Koh, H., "America's Offshore Refugee Camps" (1994) 29 U. Rich. L. Rev. 139.

, "Bringing International Law Home" (1998) 35 Hous. L. Rev. 623.

, "Can the President be Torturer in Chief?" (2006) 81 Indiana L.J. 1145.

, "The Case Against Military Commissions" (2002) 96 A.J.I.L. 337.

, "The Haitian Centers Council Case" (1994) 35 Harv. Int'l L.J. 1. , "The Haitian Refugee Litigation: A case study in transnational public law

litigation" (1994) 18 Md. J. Int'l L. & Trade 1.

, "Refugees, the Courts and the New World Order" (1994) Utah L. Rev. 999.

, "The Spirit of the Laws" (2002) 43 Harv. Int'l L.J. 23.

Kokott, J., "International Decision: Amuur v. France" (1997) 91 A.J.I.L. 147. Lambert, H., "The European Court of Human Rights and the Right of Refugees and Other Persons in Need of Protection to Family Reunion" (1999) 11 Int'l J. Refugee L. 427.

Lester, A. et al, "Space, Place and Identity: Historical geographies of Southern Africa" (2003) 29:3 J. of South African Studies 595.

Lippert, R., "Rethinking Sanctuary: The Canadian context, 1983-2003" (2005) 39 Int'l. Migration Rev. 381.

, "Sanctuary Practices, Rationalities, and Sovereignities" (2004) 29 Alternatives 535

, "Sanctuary and Law in Canada: A governmentality perspective" in Giving Sanctuary to Illegal Immigrants: Between civil disobedience and legal obligation (Conference Proceedings of the 3rd International SoDrus Conference) (forthcoming).

Lopez, C, "Australian Immigration Policy at the Centenary: The quest for control" (2003) 18 Geo. Immigr. L.J. 1.

Macdonald, R. & Kleinhans, M.,"What is Critical Legal Pluralism?" (1997) 12 Canadian J. ofL. &Soc'y25.

Macklin, A., "Disappearing Refugees" (2005) 36 Colum. Human Rights L. Rev. 101.

, "On the Inside Looking In: Foreign Domestic Workers in Canada", in Giles, W. & Arat-Koc, S. (eds.), Maid in the Market: Women's paid domestic labour (Toronto: Fernwood P., 1994).

Martin, P., "Bordering On Control: Combating irregular migration in North America and Europe" (2003) 13 IOM Research Series, online: http://www.iom.int/documents/publication/en/mrs%5F13%5F2003.pdf) (accessed: 18 Sept 2005).

Massey, D. & Bartley, K., "The Changing Legal Status Distribution of Immigrants: A caution" (2005) 39 Int'l Migration Rev. 469.

Matas, D., "Canadian Sanctuary" (1988) 8:2 Refuge 14. , "The Universal Declaration of Human Rights: Fifty years later" (2000) 46 McGill L.J. 203.

Mathew, P., "Australian Refugee Law in the Wake of the Tampa" (2002) 96 Am. J. Int'l L. 661.

Mautino, K., "Entry: What mama never told you about being there" (1994) 31 San Diego L. Rev. 911.

McBride, M., "Migrants and Asylum Seekers: Policy responses in the United States to immigrants and refugees from Central America and the Caribbean" (1999) 37 Int'l Migration 290.

Mendelson, M., "The Legal Production of Identities: A narrative analysis of conversations with battered undocumented women" (2004) 19 Berkeley Women's L.J. 138.

Merry, S., "Legal Pluralism" (1988) 22 Law & Soc'y. Rev. 869.

Mezey, N., "Dismantling the Wall: Bisexuality and the possibilities of sexual identity classification based on acts" (1995) 10 Berkley Women's L.J. 98.

Millbank, J., "Imagining Otherness: Refugee claims on the basis of sexuality in Canada and Australia" (2002) 26 Melbourne U. L.R. 144.

Miller, M., "The 2002 Randolph W. Thrower Symposium — Immigration Law: Assessing new immigration enforcement strategies and the criminalization of migration: Introduction" (2002) 51 Emory L.J. 963.

Miller, T, "Blurring the Boundaries Between Immigration and Crime Control in After September 11th" (2005) 25 B.C. Third World L.J. 81.

B. Miltner, "Irregular Maritime Migration: Refugee protection issues in rescue and interception" (2006) 30 Fordham Int'l L.J. 75.

Morris, J., "The Spaces in Between: American and Australian interdiction policies and their implications for the refugee protection regime" (2003) 21:4 Refuge 51.

Murphy, C, "Lon Fuller and the Moral Value of the Rule of Law" (2005) 24 Law & Philosophy 239.

Musgrave, R., "Maximin, Uncertainty, and the Leisure Trade-Off (1974) 88:4 Quarterly J. of Economics 625.

Nessel, L., "Undocumented Immigrants in the Workplace: The fallacy of labor protection and the need for reform" (2001) 36 Harv. C.R.-C.L. L. Rev. 345. Neuman, G., "Aliens as Outlaws: Government services, Proposition 187, and the structure of equal protection doctrine" (1995) 42 U.C.L.A. L. Rev. 1425.

, "Anomalous Zones" (1996) 48 Stan. L. Rev. 1197.

, "Closing the Guantanamo Loophole" (2004) 50 Loy. L. Rev. 1.

Noll, G., "Visions of the Exceptional: Legal and theoretical issues raised by transit processing centres and protection zones" (2003) 5 European J. of Migration & L. 303.

Nyers, P., "Abject Cosmopolitanism: The politics of protection in the anti-deportation movement" (2003) 24:6 Third World Quarterly 1069.

Olson, T., "Of the Worshipful Warrior: Sanctuary and punishment in the Middle Ages" (2004) 16 St. Thomas L. Rev. 473.

Parker, K., "From Poor Law to Immigration Law: Changing visions of territorial community in Antebellum Massachusetts" (2000) 28 Historical Geography 6.

Phelps, T., "No Place to Go, No Story to Tell: The missing narratives of the sanctuary movement" (1991) 48 Wash. & Lee L. Rev. 123.

Philo, C, "Foucault's Geography" (1992) 10 Environment & Planning: Society and Space 137.

Picot, G. & Sweetman, A., "The Deteriorating Economic Welfare of Immigrants and Possible Causes: Update 2005", Statistics Canada Research Paper Series No. 262 (Jun 2005), online: http://www.statscan.ca (accessed: 13 Sept 2005).

Portes, A., "Illegal Immigration and the International System" (1979) 26 Social Problems 425.

Portes, A. & Borocz, J., "Contemporary Immigration: Theoretical perspectives on its determinants and modes of incorporation" (1989) 23 IntT Migration Rev. 606.

Portes, A. et al, "Immigrant Transnational Organizations and Development: A comparative study" (2007) 41 IntT Migration Rev. 242.

Price, M./'Politics or Humanitarianism? Recovering the political roots of asylum" (2004) 19 Geo. Immigr. L.J. 277.

Ramji-Nogales, J. et al, "Refugee Roulette: Disparities in asylum adjudication" (2007) 60 Stan. L. Rev. 295.

Rawls, J., "Justice as Fairness: Political not metaphysical" (1985) 14 Philosophy and Public Affairs 223.

Rehaag, S., "Review: The rights of others" (2006) 44 Osgoode Hall L.J. 395. , "Troubling Patterns in Canadian Refugee Adjudication" (2008) 39 Ottawa L. Rev. 335.

Rosenzweig, P., "Functional Equivalents of the Border, Sovereignty, and the Fourth Amendment" (1985) 52 U. Chi. L. Rev. 1119.

Rothwell, D., "The Law of the Sea and the MV Tampa Incident: Reconciling Maritime principles with coastal state sovereignty" (2002) 13 Pub. L.R. 118.

Santos, B. de Sousa, "Beyond Abyssal Thinking: From global lines to ecologies of knowledges" in Eurozine (29 Jun 2007).

Schmidt, P., "Refuge in the United States: The Sanctuary Movement should use the legal system" (1986) 15 Hofstra L. Rev. 79.

Schoenholtz, A., "Refugee Protection in the United States Post-September 11" (2005) 36 Colum. Human Rights L. Rev. 323.

Schuck, P., "Refugee Burden-Sharing: A modest proposal" (1997) 22 Yale J. IntT L. 243.

Segur, P., "L'asile religieux dans la modernite" (1997) 53 Migrations Societe 61.

Sharma, N., "Canadian Nationalism and the Making of a Global Apartheid" in Women & Environments International Magazine (Fall, 2005) 9.

, "Immigrant and Migrant Workers in Canada: Labour movements, racism and the expansion of globalization" (2002) 21 Canadian Women Studies 18.

Sianni, A., "Interception Practices in Europe and their Implications" (2003) 21:4 Refuge 25.

Sossin, L., "Boldly Going Where No Law Has Gone Before: Call centres, intake scripts, database fields, and discretionary justice in social assistance" (2004) 42 Osgoode Hall L.J. 363.

Starr, S. & Brilmayer, L., "Family Separation as a Violation of International Law" (2003) 21 Berkeley J. Int'l L. 213.

Stastny, C. & Tyrnauer, G., "Sanctuary in Canada" in Robinson, V. (ed.), The International Refugee Crisis: British and Canadian responses (London: Macmillan, 1993).

Steyn, J., "Guantanamo Bay: The legal black hole" (2004) 53:1 Int'l & Comp. L. Quarterly 1.

Tamanaha, B., "Understanding Legal Pluralism: Past to present, local to global" (forthcoming) Sydney Law Review. Taylor, S., "The Pacific Solution or a Pacific Nightmare?" (2005) 6 Asian-Pacific L. & Pol'yJ. 1.

, "Protection Elsewhere/Nowhere" (2006) 18 Int'l J. Refugee L. 283.

Teubner, G., "The Two Faces of Janus: Rethinking Legal Pluralism" (1992) 13 Cardozo L. Rev. 1443.

Toope, S., "Inside and Out: The stories of international and domestic law" (2001) 50 UNBLJ11.

Trebilcock, M., "The Law and Economics of Immigration Policy" (2003) Am. L. & Econ. Rev. 271.

Tumlin, K., "Suspect First: How terrorism policy is reshaping immigration policy" (2004) 92 Cal. L. Rev. 1173.

Villarruel, T., "The Underground Railroad and the Sanctuary Movement: A comparison of history, litigation, and values" (1987) 60 Southern California L. Rev. 1429.

Walters, W., "Border/Control" (2006) 9 European J. of Social Theory 187.

Weissbrodt, D. & Bergquist, A., "Extraordinary Rendition: A human rights analysis" (2006) 19 Harv. Hum. Rts. J. 123.

Wexler, A., "The Murky Depths of the Entry Fiction Doctrine" (2004) 25 Cardozo L. Rev. 2029.

White, A., "Geographies of Asylum, Legal Knowledge and Legal Practice" (2002) 21 Political Geography 1055.

Wright, G., "Cultural history: Europeans, Americans, and the meanings of space" (2005) 64 J. of the Society of Architectural Historians 436.

, "Spatialization of Power: A discussion of the work of Michel Foucault" (Spring, 1982) Skyline 14.

Documents, Reports & Press Releases (Government - Canada)

Auditor General, "Report of the Auditor General: Citizenship and Immigration Canada - Control and Enforcement" (2003), online: http://www.oag- bvg.gc.ca/domino/reports.nsf/html/20030405ce.html (accessed: 19 Sept 2005).

Canadian Border Services Agency, "Contraband Detection" (26 Jan 2007) online: http://cbsa-asfc.gc.ca/security-securite/detect/menu-eng.html (accessed: 27 Feb 2007). , "Fact Sheet" (January 2004), online: http://www.cbsa- asfc.gc.ca/newsroom/factsheets/2004/0128miRration-e.html (accessed: 9 Sept 2005).

[Canadian Parliamentary] Standing Committee on Citizenship and Immigration, "Hands Across the Border" (4 Dec 2001), online: http://cmte.parl. gc. ca/Content/HOC/committee/3 71 /cimm/reports/rp 103 2046/cim m02rp/07-toc-e.htm (accessed: 20 Feb 2007).

Citizenship and Immigration Canada, "Canada's Immigration Policies — Misperception vs. Reality", online: http://www.cic.gc.ca/english/facts-myths/united-states.html (accessed: 9 Nov 2006).

, "Canada-U.S. Safe Third Country Agreement", online: http://www.cic.gc.ca/ENGLISH/department/laws-policy/menu-safethird.asp) (accessed: 19 Apr 2008).

, "Expenditure Plan for the Department of Citizenship and Immigration Canada, 1997" (1997), online: http://dsp-psd.pwgsc.gc.ca/Collection/BT31-2-1998-III- 91E.pdf (accessed: 9 Sept 2005).

, "Facts and Figures 2004: Immigration Overview: Permanent and Temporary Residents", online: http://www.cic.gc.ca/english/pub/facts2004/index.html (accessed: 10 Sept 2005).

, "News Release: Caplan Tables New Immigration and Refugee Protection Act" (6 Apr 2000), online: http://www.cic.gc.ca/english/press/00/0009%2Dpre.html (accessed: 10 Sept 2005).

, "Protected Persons Manual 1: Processing Claims for Protection in Canada", online: http://www.cic.gc.ca/manuals-guides/english/pp/pp01e.pdf (accessed: 2 Sept 2005).

, "Public Safety and Anti Terrorism: Final Report" (Ottawa: CIC, 2003), online: http://www.cic.gc.ca/english/pdf/research-stats/public-safety.pdf (accessed: 10 Sept 2005).

, "Refugee Appeal Division Fact Sheet" (18 Nov 2005), online: http://www.cic.gc.ca/english/refugees/rad-menu.html (accessed: 9 Nov 2006).

, "Refugee Appeal Division Implementation Delayed" (29 Apr 2002), online: http://www.cic.gc.ca/english/press/02/0212-pre.html (accessed: 9 Nov 2006),

, "Review of the Immigration Control Officer Network - Final Report" (Ottawa: CIC, 2001), online: http://www.cic.gc.ca/english/researcli/audit/ico/index-e.html) (accessed: 19 Sept 2005). , "Safe Third Country Agreement Comes Into Force Today" (29 Dec 2004), online: http://www.cic.gc.ca/english/press/04/0420-pre.html (accessed: 2 Sept 2005).

Dolin, B. & Young, M., Background Paper: Canada's immigration program (Ottawa: Parliamentary Information and Research Service, 2004) BP190E.

Fraser, S., Report of the Auditor General of Canada to the House of Commons: Detention and removal of individuals (Ottawa: Auditor General of Canada, 2008)

Frecker, J., Immigration and Refugee Legal Aid Cost Drivers: Final report (Ottawa, Department of Justice, 2002).

Immigration and Refugee Board, "Fast Track Policy: Expedited Process" (2005) Policy no. 2005-02, online: http://www.irb- cisr.gc.ca/en/references/policy/policies/exprocess_e.htm (accessed: 9 Jul 2007).

, "Formative Evaluation of the IRB's Streamlining Initiative" (2005), online: http://www.irb- cisr.gc.ca/en/about/transparency/evaluations/streamlining/index_e.htm (accessed: 9 Nov 2006).

Public Safety and Emergency Preparedness Canada, "International Indigenous Cross Border Security Summit", online: http://www.psepc.gc.ca/prg/le/bs/iicbss-en.asp (accessed: 27 Feb 2007).

Social Planning and Research Council of BC, "An Analysis of Immigration and Refugee Law in Canada" (2003), online: http://canada.justice.gc.ca/en/ps/rs/rep/2003/rr031ars-18/larsl8.pdf) (accessed: 12 Sept 2005).

Tremble, R. et al, Not Just Numbers: A Canadian framework for future immigration (Ottawa: Minister of Public Works and Government Services Canada, 1997).

Williams, T., "The Role of Transportation in Immigration 1900-2000" (2001), online: http://www.cic.gc.ca/english/department/transport/index.html (accessed: 10 Sept 2005).

Documents, Reports & Press Releases (Government — United Kingdom)

Home Office, "Home Office Publishes Latest Asylum Statistics—Robust New Measure to Tackle Asylum Abuse" (29 Nov 2002), online: http://www.homeoffice.gov.uk/n_story.asp7item id=293 (accessed: 14 Sept 2005).

, "Secure Borders, Safe Havens: Integration with diversity in modern Britain" (2002), online: http://www.asylumsupport.info/publications/officialdocuments/diversity.pdf (accessed: 20 Oct 2005).

Documents, Reports & Press Releases (Government - United States)

CIA, World Factbook, (online: http://www.cia.gov/cia/publications/factbook/geos/nr.html (accessed: 25 Sept 2005).

US General Accounting Office, Asylum: Approval rates for selected applicants (Washington, D.C.: The Office, 1987) Report: GAO/GGD-87-82FS, B-224935.

US Government Accountability Office, "Border Security: Security Vulnerabilities at Unmanned and Unmonitored U.S. Border Location" (Sept 2007), online: http://www.gao.gov (accessed: 27 Sept 2007).

US Customs and Border Protection, "U.S. and Poland Sign Agreement to Begin Screening Program at Warsaw Airport" (8 Sept 2004), online: http://www.cbp.gov/xp/cgov/newsroom/news_releases/archives/2004_press_relea ses/092004/09082004.xml (accessed: 19 Sept 2007).

Wasem, R., "Central American Asylum Seekers: Impact of 1996 immigration law" (1997) Congressional Research Service Report 97-810, online: http://opencrs.cdt.org/document/97-810/ (accessed: 20 Feb 2007).

White House, "President Bush Meets with Prime Minister Belka of Poland" (9 Aug 2004), online: http://www.whitehouse.gov/news/releases/2004/08/20040809- 7.html (accessed: 19 Sept 2007).

Documents, Reports & Press Releases (International Organizations)

Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, Summary Record of the Thirty-fifth Meeting (25 Jul 1951), U.N. Doc. A/CONF.2/SR.35.

Global Commission on International Migration, "Migration in an Interconnected World: New directions for action" (2005), online: http://www.gcim.org (accessed: 20 Oct 2005).

Inter-American Commission on Human Rights, "Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System" (28 Feb 2000) OEA/Ser.L/V/II.106. IOM, International Comparative Study on Migration Legislation and Practice (Dublin, Government Publication, 2002).

UNHCHR, "Statement of High Commissioner for Human Rights on Detention of Taliban and Al Qaida Prisoners in Guantanamo Bay, Cuba" (16 Jan 2002), online: http://www.unhchr.ch (accessed: 15 Sept 2007).

UNHCR, "Afghan Refugees Continue Arriving at Closed Pakistani Border" in UNHCR News Stories (15 Jan 2002), online: http:Zww.unhcr.ch (accessed: 16 Sept 2005).

, Global Refugee Trends: Overview of refugee populations, new arrivals, durable solutions, asylum seekers, stateless and other persons of concern to UNHCR (Geneva: UNHCR, 2005).

, "Interception of Asylum Seekers and Refugees: The international framework and recommendations for a comprehensive approach" (2000) EC/50/SC/CRP.17.

, "Refugees and Others of Concern to UNHCR - 1998 Statistical Overview"

(1999), online: http://ww.unhcr.org/statistics (accessed: 21 Sept 2007).

, UNHCR Statistical Yearbook 2001 (Geneva: UNHCR, 2002).

, UNHCR Statistical Yearbook 2006 (Geneva: UNHCR, 2007). Weissbrodt, D., "Final report on the rights of non-citizens" (2003) U.N. Doc. E/CN.4/Sub.2/2003/23.

Documents, Reports & Press Releases (Non-Governmental Organizations)

American Civil Liberties Union, "Undocumented Workers Bring Plea for Non- Discrimination to Human Rights Body" (11 Jan 2006), online: http://www.aclu.org/immigrants/discrim/27235prs20061101 .html (accessed: 12 Apr 2008).

Americas Watch Committee, Human Rights in Nicaragua: 1986 (New York: Americas Watch Committee, 1987).

, "The Massacre at El Mozote: The need to remember" (1992) 4:2 News From Americas Watch 1.

Amnesty International Canada, "Canada: Refugees - No recourse to fair appeal", online: http://www.amnesty.ca/take_action/actions/canada_fair__appeal.php (accessed: 23 Feb 2007).

Anani, L., "Client Arrested in Woman's Shelter" (30 Jan 2008), Email sent to the Refugee Lawyers' Association Listserv (on file with author). Bacon, D., "The Political Economy of Migration" (2008) 1 National Newsletter of the New Sanctuary Movement 6.

Canadian Council for Refugees, "10 reasons to be concerned about proposed amendments to Immigration and Refugee Protection Act in Bill C-50" (2008), online: http://www.ccrweb.ca/documents/c50tenreasons.htm (accessed: 23 Apr 2008).

, "Closing the Front Door on Refugees: Report on Safe Third Country Agreement" (August 2005), online: www.web.ca/~ccr/closingdoor.pdf (accessed: 1 Oct 2005).

, "Interdicting Refugees" (1998), online: http://www.web.net/ccr/Interd.pdf (accessed: 30 Oct 2006).

, "Issues for H&C Roundtable" (27 Mar 2006), online: http://www.web.ca/~ccr/H%26CMarch2006.html (accessed: 9 Nov 2006).

, "Launch of 'Proud to Aid and Abet Refugees' Campaign" (29 Nov 2007), online: http://www.ccrweb.ca/eng/media/pressreleases/29nov07.htm (accessed: 17 Apr 2008).

, "Proud to Aid and Abet Refugees: Backgrounder" (Jan 2008), online: http://www.ccrweb.ca/aidandabet/aidandabetbackgrounder.pdf (accessed: 17 Apr 2008).

Cornelius, W., "Evaluating Enhanced US Border Enforcement" (2004) Migration Policy Institute Feature Story, online: http://www.migrationinformation.org/feature/display.cfm?ID=223) (accessed: 21 Sept 2005).

Customs Excise Union, "Secure Border Action Plan" (Nov 2006), online: http://www.ceuda.psac.com/english/publications/reports/Other/SBAP.pdf (accessed: 27 Feb 2007).

Interfaith Sanctuary Coalition, "Why do People Turn to Sanctuary?" (9 Oct 2003), online: http://www.ccrweb.ca/whysanctuary.htm (accessed: 23 Feb 2007).

KAIROS, "Refugees and Sanctuary in Canada: The churches respond" (4 Aug 2004), online: http://www.kairoscanada.Org/e/media/press/prRefugeesSanctuary040804.asp (accessed: 5 Nov 2006).

Mittermaier, V., "Church Asylum in Germany: Experiences of more than 20 years work in the field, relevance within the church, political framework" (2007) German Ecumenical Committee on Church Asylum, online: http://www.kirchenasyl.de/l_start/English/Church%20asylum%20in%20German y.pdf (accessed: 14Jun2007). New Sanctuary Movement, "Legal Help & Support", online: http://www.newsanctuarymovement.org/legal.htm (accessed: 17 Jun 2007).

, "Prophetic Hospitality: Strategy for a new movement", online: www.newsanctuarymovement.org (accessed: 17 Jun 2007).

OXFAM, "Inquiry into Australia's Relationship with Papua New Guinea and Other Pacific Island countries" (8 Jul 2002), online: http://www.oxfam.org.au/campaigns/submissions/auspngpacificrealtions-sub.pdf (accessed: 15 Oct 2005).

, "Still Drifting: Australia's Pacific Solution becomes a Pacific Nightmare" (2002), online: http://www.oxfam.org.au/campaigns/refugees/still_drifting/still_drifting.pdf (accessed 12 Sept 2005).

Presbyterian Church in Canada, Sanctuary: A statement and guidelines for congregations, Report Presented to the 132" General Assembly (2006), online: http://www.presbyterian.ca/iustice/reports/0506-overturel4-sanctuary.pdf (accessed: 32 Jul 2007).

Siemiatycki, M., "The Municipal Franchise and Social Inclusion in Toronto: Policy and practice" (2006) Policy Paper prepared for Inclusive Cities Canada, online: http://www.inclusivecities.ca/publication/reports/2006/toronto-report.pdf (accessed: 12 Apr 2008).

Tait, K., "Media Image, Community Impact: Assessing the impact of media and political images of refugees and asylum seekers on community relations in London" (2004), online: http://www.icar.org.uk/?lid=4690 (accessed: 16 Sept 2005).

Toronto Police Services Board, "Victims and Witnesses Without Legal Status" (2006) TPS Policy: Min. No. P34/06, PI40/06 (on file with author).

United Church of Canada, Sanctuary for Refugees?: A guide for congregations (Toronto: United Church of Canada, 2004).

Media Reports

Ahmed-Ullah, N., "Immigrant's son to lobby on her behalf in capital" in The Chicago Tribune (3 Oct 2006), 2006 WLNR 17100303 (Westlaw).

Archibold, R., "Illegal immigrant advocate for families is deported" in The New York Times (21 Aug 2007) 14.

Armstrong, J., "Ottawa grants refugee claimant 60-days" in The Globe & Mail (20 Aug 2007) A5. , "Refugee seeks asylum in Sikh temple" in The Globe & Mail (9 July 2007) SI.

Australian Broadcasting Corporation, Four Corners, Online ed. (2001), online: http://www.abc.net.au/4corners/stories/s344246.htm (accessed: 15 Apr 2008).

Avila, O., "Activist ready for long haul at church" in The Chicago Tribune (17 Aug 2006), 2006 WLNR 14246227 (Westlaw).

, "Act of faith, defiance" in The Chicago Tribune (16 Aug 2006), 2006 WLNR 14177554 (Westlaw).

, "Boy wages fight for mother" in The Chicago Tribune (15 Nov 2006), 2006 WLNR 19889517 (Westlaw).

Barron, J., "Churches to offer sanctuary" in The New York Times (9 May 2007) Bl.

Bergeron, M., "Les defenseurs de Cherfi exigent une enquete publique" in La Presse (11 Mar 2004) A6.

Bissett, J., "Forget churches: Reform the refugee system" in The National Post (28 Jul 2004) Al 9.

Boivin, L., "100 demonstrate for deported man" in The Montreal Gazette (7 Mar 2004) A5.

Bonner, R., "Zaire closes a border to staunch the flow of Rwandans" in The New York Times (21 Aug 1994) 14.

Bronskill, J., "Sanctuary is 'breaking the law': Government memo says churches wrong to harbour refugees facing deportation" The Toronto Star (7 Mar 2005) A13.

, "Sgro to urge churches to stop practice of harbouring refugee claimants" in The Globe & Mail (26 Jul 2004) A4.

Brouwer, A., Goldberg, M., & Dench, J., "Are we all smugglers now?" in The Globe & Mail (9 Oct 2007) A21.

Burke, N., "Pacific Solution is finally shelved" in The Queensland Courier Mail (15 Oct 2005) 6.

Campion-Smith, B., "Refugees 'freed' from church havens" in The Toronto Star (15 Dec 2004) A2.

Chase, S., "Jobs alert sounded about border: Security crackdown at crossing stifling commerce, Canadian, U.S. business leaders warn" in The Globe & Mail (21 Feb 2008) B5. Chen, J., "Churches will give refugees sanctuary until 'flawed' system fixed, leaders say" in The Ottawa Citizen (27 Jul 2004) D3.

Chiquette, B., "Letter to the Editor of the Toronto Star dated August 30, 2007 concerning the Ideas page of August 29, 2007", online: http://www.irb- cisr.gc.ca/en/media/news/2007/star070830_e.htm (accessed: 9 Jul 2007).

Chuang, A. & Haught, N., "Raid makes debates over sanctuary real" in The [Portland] Oregonian (15 Jun 2007) Bl.

Cowell, A., "A Docile and Somber Exodus" in The New York Times (3 Feb 1983) Al.

Dauvergne, C, "Why Judy Sgro is just plain wrong" in The Globe & Mail (2 Aug 2004) All.

Day, M., "Victory comes at a high price" in The [Sydney] Daily Telegraph (14 Nov 2001)24. de Souza, R., "No place left to hide: With the end of sanctuary, the state will be everywhere" in The National Post (27 Jul 2004).

Delacourt, S., "Day orders review of children seized at school" in The Toronto Star (2 May 2006).

Dodson, L. & Douez, S, "Pacific solution a nightmare: Nauru" in The Age (10 Jun 2002).

"Dreadful notes of preparation" in The Economist (25 Aug 1990) 31.

Duffy, A., "False travel papers curtailed: Tighter security checks overseas credited with cutting fraudulent claims" in The National Post, online ed. (28 Dec 2004).

Editorial Board, "Churches no place for refugee appeals" in The Edmonton Journal (27 Jul 2004) A12.

, "Elvira Arellano and the law" in The Chicago Tribune (17 Aug 2006), 2006

WLNR 14236339 (Westlaw).

, "Fix the system, leave churches alone" in The Toronto Star (Aug 3 2004) A14.

, "Fugitive claimants undermine immigration" in The [Montreal] Gazette (8 May

2008).

, "Terrorism and immigration" in The New York Times (5 Oct 2001) 26.

Fleury, R., "Le droit d'asile des refugies" in he Soleil (29 Jul 2004) A15.

Fong, P., "Iranian refugee granted asylum" in The Globe & Mail (20 Feb 2007) A12. Gervais, L., "L'imam Jaziri s'enfermera dans sa mosquee pour eviter d'etre expulse" in Le Devoir (16 Dec 2006) A4.

Gandhi, U., "Crown drops human smuggling charges; Case prompts calls for changes to law" in The Globe & Mail (9 Nov 2007) A8.

"Go Home" in The [Victoria] Times Colonist (15 Aug 1999) 1.

Goldberg, M., "Why sanctuary is necessary" in The Montreal Gazette (20 Aug 2004) A21.

Gonzalez, D., "Valley congregations may participate in Sanctuary Movement" in The Arizona Republic (1 Apr 2007) A21.

Hamilton, F., "Afghans cash up and fly out" in The [Sydney] Daily Telegraph (23 Jul 2003).

Humphreys, A., "Seizure of boats outside Canadian limits proposed" in The National Post (2 Nov 2001) A4.

"Immigration is under control, the politics of immigration is a different matter" in The Economist (9 Apr 2005) 81.

"Iranian refugee Amir Kazemian to be allowed to remain in Canada" in Diocese of New Westminster News (14 Mar 2007), online: http://www.vancouver.anglican.ca/News/tabid/27/ctl/ViewArticle/ArticleId/450/ mid/486/Default.aspx (accessed: 20 Mar 2007).

"Is church sanctuary outdated" in CBC Radio 1, Cross Country Check-up (1 Aug 2004), online: http://www.cbc.ca/checkup/archives04.html (accessed: 17 Jun 2004).

Jimenez, M., "Broken gates: Canada's welcome mat frayed and unravelling" in The Globe and Mail (16 Apr 2005) A8.

, "Historic crypt becomes sanctuary for failed refugee claimant" in The Globe & Mail (25 Sep 2004) A6.

, "Immigration advisers' board shaken again" in The Globe & Mail (14 Dec 2005) A15.

, "Ottawa eyes amnesty plan for 10,000 illegal workers" in The Globe & Mail (11 Sept 2004) All.

, "Tighter security cited in refugee-claims decline" in The Globe & Mail (12 Aug 2004) A8.

, "Volpe promises to revamp refugee process" in The Globe & Mail (19 Apr 2005) A5. Jimenez, M. & Alphonso, C, "Pupils held in asylum case spark review" in The Globe & Mail (2 May 2006) Al.

Kelly, P., "That Rear Vision Thing" in The Weekend Australian (10 Nov 2001) 32.

Keung, N., "Illegals afraid to see a doctor" in The Toronto Star (23 May 2006) A4.

, "Legal group calls arrest 'indefensible'" in The Toronto Star (1 Nov 2007) A18.

, "Refugee smuggling charges dropped; Ottawa bows to backers of US aid worker who helped asylum-seekers" in The Toronto Star (9 Nov 2007) Al 8.

Kohler, N., "Churches want dialogue with Sgro: Will continue to offer sanctuary to refugees" in The Montreal Gazette (27 Jul 2004).

Lambert, S., "Churches protect refugee claimants" in The Toronto Star (27 November 2006) CI 1.

Lasalle, L., "Human-smuggling charge targeting wrong person, refugee lawyer says" in The Globe & Mail (29 Sept 2007) A14.

Lydersen, K., "Church is sanctuary as deportation nears" in The Washington Post (17 Aug 2006) A10.

MacAfee, M., "Canadian churches follow Old Testament tradition in giving haven to refugees" (10 Aug 2003) Canadian Press Newswire (LEXIS).

"Marchers protest border patrol group" in The New York Times (24 Jul 2005) 122.

Mayer, J., "Outsourcing torture: The secret history of America's "Extraordinary Rendition" program" in The New Yorker (14 Feb 2005).

McGeehan, P, & Bernstein, N., "Businesses say New York's clout is emigrating, with visa policies to blame" in The New York Times (24 Mar 2008) Bl.

McKnight, P., "Yes, the violation of sanctuary is a big deal" in The Vancouver Sun (22 Mar 2004) A8.

Mercer, P., "Australia winds down Nauru camp" in BBC News, online ed (14 Oct 2005).

"'Minutemen' end unofficial border patrol, but plan to return" in The New York Times (1 May 2005) Al.

Moore, O., "Refugee board member suspended over sex allegations" in The Globe & Mail (3 Oct 2006) A7.

"New Mexico is declared sanctuary for refugees" in The New York Times (30 Mar 1986) 1. "Nostra culpa" in The Economist (30 Mar 2002) (available on LEXIS).

Oziewick, E., "Manning plays down immigration policy Reform Party literature - advocates harsher restrictions" in The Globe & Mail (15 Jul 1991).

Patrick, K., "Deadly turn for border runners: Albanian man drowns in bid to enter Canada" in The Windsor Star (7 Sept 2005).

Peritz, I., "Algerian arrested in church denied asylum in U.S." in The Globe & Mail (23 Oct 2004) A24.

, "Deportation orders stayed in two sanctuary cases" in The Globe & Mail (15 Dec 2004) Al 5.

Perry, A., "Churches should butt out", Letter to the Editor in The Montreal Gazette (3 Aug 2004) Al4.

Porter, I., "Le Canada expulse le militant algerien Mohamed Cherfi" in Le Devoir (6 Mar 2004) A5.

, "Les Etats-Unis donnent raison a Cherfi" in Le Devoir (3 Jun 2004) A4.

Power, B., "Quebec eviction worries Halifax woman" in The [Halifax] Chronicle-Herald (11 Mar 2004) Bl.

"Rallies held to protest man's deportation to India" in The Globe & Mail (18 Aug 2007) S2.

"Refugee claimant's supporters demand his return from U.S." in The Toronto Star (10 Mar 2004) A7.

"Refugee advocate arrested at border" in the Montreal Gazette, online ed. (25 Sept 2007), online: www.canada.com/montrealgazette (accessed: 20 Apr 2008).

Rehaag, S., "Adjudication lottery for refugees" in The Toronto Star (30 Aug 2007) A8.

, "No one is above the law on refugees" in The Toronto Star (30 Jul 2004) A19.

Rohde, D., "Macedonian troops said to push 1,000 refugees back" in The New York Times (7 May 1999) 14.

"Ruddock enters Nauru spat", ABC News (7 Jan 2004), online: http://www.abc.net.au/news/newsitems/sl021750.htm (accessed: 2 Nov 2005).

Ruethling, G., "Chicago woman's stand stirs immigration debate" in The New York Times (19 Aug 2006) A10. Sahagun, L., "L.A. church in forefront of Sanctuary Movement" in The Los Angeles Times (23 Mar 2007) Bl.

Salinas, E., "His church - another version of prison" in The Globe & Mail (17 Jun 2006) SI.

Schmemann, S., "Hijacked jets destroy twin towers and hit Pentagon in day of terror: President vows to exact punishment for 'evil'" in The New York Times (12 Sept 2002) Al.

Simpson, J., "The 'fundamental justice' that swallowed a minister" in The Globe & Mail (18 Jan 2005).

, "The Supreme Court has gummed up the refugee process" in The Globe & Mail (13 Feb 1997) A22.

Sinclair, D., "The Cherfi arrest: Sanctuary violated" in The United Church Observer, online ed. (April 2004), online: http://www.ucobserver.org/archives/apr04_nation.shtml (accessed: 8 Jan 2007).

Soucy, L., "Le mouvement d'appui a Cherfi prend de l'ampleur" in he Devoir (10 Mar 2004) A5.

Swarns, R., "Advocates for immigrants scorn Bush policy on Haitian refugees" in The New York Times (27 Feb 2004) A4.

, "Immigrants rally in scores of cities for legal status" in The New York Times (11 Apr 2006) Al.

Taylor, S., "Scrap sanctuary", Letter to the Editor in The Globe & Mail (11 Aug 2004) A12.

Turnbull, L., "Groups condemn immigration raids" in The Seattle Times (16 Feb 2007) Bl.

Vastel, M., "Ca s'est passe au Canada... et a Quebec" in Le Soleil (11 Mar 2004) A17.

Weiner, T., "On these shores, immigrants find a new wave of hostility" in The New York Times (13 Jun 1993) 41.

Zezima, K., "Small businesses face cut in immigrant work force" in The New York Times (14 Mar 2008) A16.

Films

Kazmi, A. (Dir.), Continuous Journey (Peripheral Visions, 2004).

Rosenberg, S. (Dir.), The Voyage of the Damned (Pioneer Video: 1976).