Bordering on Legality: An investigation into the lines 'we' draw / the lines that draw 'us' (and the spaces in between) by Sean Rehaag A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Sean Rehaag (2008) Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 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. 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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.