Meta-Borders and the Rule of Law: From Externalisation to ‘Responsibilisation’ in Systems of Contactless Control

Abstract

AbstractThis article contests the strategic use of what I have called meta-borders. These are the array of border enforcement mechanisms implemented beyond the physical frontiers of States through different means and by different actors, for the purpose or with the effect of denying human rights protection to (unwanted) non-citizens. The ensuing ‘irresponsibilisation’ of States of destination, on whose behalf or for whose benefit the measures are executed, is anathema to the Rule of Law. My main contention is that prevailing understandings of jurisdiction and responsibility, as applied to externalised migration controls (the core feature of meta-borders), need to be revised. Currently, they allow for the emergence of a double standard, solely dependent on location, whereby the State may act abroad with impunity in relation to the human rights consequences of its conduct, exploiting geographical distance to create and legitimate ethical and legal detachment from its own wrongdoing. This article proposes an alternative model of ‘responsibilisation’ that tallies with the flexible spatiality of migration governance. The functional configuration of the meta-border is matched with an equally functional conceptualisation of jurisdiction that rejects unaccountable forms of power. The article thus problematises the localisation of the meta-border, mapping its multiple roles, modes, and dimensions, highlighting the significance of its legal manifestations, before exploring the impact of law on the de-territorialisation of the sovereign exercises of demarcation, delimitation, and exclusion that it implies. The meta-border, crafted by legal fiat, actively (re)orders space, curtailing the reach of human rights and disclaiming responsibility for related violations. To reconcile power with accountability, I advance the ‘responsibilisation’ model, premised on the acceptance that human rights, as fundamental components of the Rule of Law, track and constrain all exercises of State authority.