Part IV - Democratizing Shifting Borders

14 Three Responses to Shifting Borders Sovereigntism, Democratic Cosmopolitanism, and the Watershed Model

Paulina Ochoa Espejo

In November 2020, after Hurricane Iota destroyed their houses and gang-violence upended their lives, thousands of Honduran asylum-seekers tried to reach the US. But they did not make it there (Burnett, 2021). They had expected the infamous border wall to be the major obstacle they would face. Yet, after the US government struck a deal with Mexican authorities, new obstacles appeared on the way. Since 2019, at the request of the US, Mexico has mobilized some 30,000 troops to contain such asylum-seekers at its own southern border (Diaz Briseño, 2022). For the Honduran migrants the US border effectively moved south.

In the last two decades, states have intensified the practice of policing boundaries beyond their territorial limits – a phenomenon known as “externalization” (Carling & Hernández-Carretero, 2011; Casas-Cortes, Cobarrubias, & Pickles, 2015; Sandven, 2022). They also deploy border police in their own heartlands, internalizing borders and changing their shape.¹ They thus create what Ayelet Shachar calls “shifting borders”: uses of the law to selectively restrict mobility by detaching migration-control from territorial markers (Shachar, 2020b: 4).

Shifting borders reveal a state’s power to migrants, but they have wider effects. When states make exceptions to the limits of their countries’ jurisdictions, their legitimacy also changes. For state legitimacy not only depends on how states exercise their power, but it also depends on where they exercise it. This is obvious when states invade other countries or establish colonial orders. In those cases, the state might govern justly, but its governing in the wrong place renders the political order illegitimate (Stilz, 2009, 2019: 90–93). Moreover, borders and legitimate territory are also the main props of the international state system, and of the human rights regime that gives it rules. Therefore, when borders shift, the international order also changes. Shifting borders affect the states’ and the states system’s legitimacy.

If shifting borders thus upend traditional notions of territorial legitimacy, what should we make of them? Should we be for them? Against them? Or something else? This chapter analyses three normative responses to shifting borders, and defends the third. Each response –Sovereigntism, Democratic Cosmopolitanism, and what I call, the Watershed Model – deals differently with the foundational elements of state legitimacy (people, territory, and rights). The Watershed Model imagines the political response to shifting borders as similar to other grass-roots movements, such as those of indigenous peoples and transnational migrant activists, who redefine territory to allow for human mobility and to resist state overreach in border control. I argue that this model is best prepared to deal with challenges of shifting borders in times of planetary crises, such as global poverty and climate change.

1 Rights, People, and Territory: Shifting Borders as a Normative Problem

In the last few decades, rich countries have externalized borders to avoid having to hear asylum seekers who reach their territory. One way they do this is by sharing responsibilities with other states (as in the case of the EU’s “Integrated Border Management”), to subcontract functions to other states through cooperation accords (the best known case is that of the EU with Turkey in 2016), and to delegate powers to private entities (FitzGerald, 2019; Sandven, 2022).

While most researchers of externalized borders ask whether this practice jeopardizes migrants’ human rights, fewer notice that it jeopardizes the international system’s legitimacy. For at least the past hundred years, the system has rested on the congruence of peoples and territories. This congruence is required because legitimate borders rest on the people’s collective self-determination (which in turn is grounded in the value of individual self-determination). Sovereign states, following the 1936 Montevideo Convention, accept that having a government, a permanent population, a defined territory, and the capacity to relate to other states are necessary for a state’s existence. However, there is also an international understanding that “government” ought to be legitimate. Since the early twentieth century, legitimacy is premised both on good governance and on individual and collective autonomy and human rights. The foundational elements of legitimate states thus became (1) universal or human rights (enforceable by local law), (2) a people (as the ground of law), and (3) territory (as spatial jurisdiction). Thus the triad of rights, people, and territory underlie state legitimacy.

Besides these three, there is also a systemic element. State legitimacy also depends on the whole states system’s upholding rights for everyone in the world; for people can only fully enjoy their rights if every individual has access to a territory and a state through legal citizenship, and if all other states and the system as a whole can protect them and pick up the slack if there is any (Brock, 2020; Owen, 2020). So there must be rights, people, and territory in every state for the system to be legitimate.

The problem with externalization is that it upsets the balance of these elements. Shifting borders changes the limits of a state’s jurisdiction, misaligning people and territory. In so doing, they also undermine state legitimacy, because the people cannot democratically authorize law within the territory whose borders are now shifting. A democratic people could authorize law within reduced territorial expanses, but externalized borders and enlarged jurisdictions impinge on other people’s territories. Now, without democratic authorization there is no collective self-determination, which is the ground of individual states’ legitimacy. Moreover, without the right alignment of rights, territory, and people, individuals and even entire populations can fall through legal cracks and their human rights become unenforceable, thus jeopardizing the legitimacy of the whole system (Aleinikoff & Owen, 2022; Brock, 2020; Owen, 2020).

For many in the Global North, this misalignment reveals how vulnerable are the human rights of asylum seekers. In the South, by contrast, the misalignment of people, territory, and rights causes concern because it threatens self-determination, which is supposed to protect against international abuse by more powerful countries. Without the assumption that people and territory align, we open the door to nondemocratic and colonial practices.

When Northern states externalize borders, they impinge on the rights of individuals, but also on other states’ rights. For example, Donald Trump bragged that, in 2019, he strong-armed the Mexican foreign minister by threatening to raise tariffs on imports unless Mexico policed its southern border at no cost to the United States. Although we don’t know whether these claims are true, there is no doubt that Mexico ceded to US pressure when it accepted the “Remain in Mexico” program. Through this program, 71,000 asylum seekers from third countries were sent back to Mexico to wait for an immigration hearing in the United States. Meanwhile, Mexico did deploy 25,000 soldiers (Diaz Briseño, 2022). The Montevideo triad of territory, people, and rights was supposed to protect self-determination. But border externalization threatens this principle, and with it, the states system’s legitimacy.

Given that the elements of the people, territory, and rights triad are in flux, they lead decision-makers to a trilemma, where they can hold one or two elements as fixed, but not all three (see Figure 14.1). They can’t leave all three in flux, because administrative structures of some kind must exist to enforce rights, and their legitimacy requires a limit to jurisdiction. If you cannot steady all, there will be sharp disagreements over how they should be controlled, because fundamental values are at stake. Thus, political problems related to shifting borders (especially those related to immigration) often appear intractable, for there are conflicts over the proper balance of the triad’s elements.

Figure 14.1 The trilemma of shifting borders

How to strike that balance? Political philosophy today offers three answers. One demands that border externalization stop. That is, it seeks to stabilize people and territory, even if this comes at the expense of rights. On this view, what matters most is connecting (national) people and territory, because this dyad constitutes sovereignty. We could therefore call this position sovereigntist. Those who take it hold this connection so dear that they are willing to jettison migrants’ rights (as codified in international law) in order to connect people and territory. And they privilege current citizens’ rights over those of foreigners.

A second response keeps rights and people in place, but allows territory to move to keep up with the new practices of border control. From this perspective, rights are still justified democratically (the people authorize law), and democratic law should follow border control wherever it goes. As Ayelet Shachar argues, it is “painfully obvious” that we need “mobile remedies and geographically flexed rights protections” to keep up with current changes in border control (Shachar, 2020b). This response thus emphasizes the connection between the people and rights. We could call this position democratic cosmopolitanism.

Finally, there is a third response, one that keeps borders where they are legally drawn and maintains rights connected to territory. This response sustains territorial legitimacy by keeping borders and border control in their traditional places. But it is flexible with the people: It allows for human movement and makes physical presence in a territory, or “being here” (Bosniak, 2007), the ground of political legitimacy. Because this response is associated with environmental movements and territorial rights demands, I’ll call it the Watershed Model (I elaborate on this response in Ochoa Espejo, 2020).

Rather than engage specific works, in what follows I distill the main features of these responses, with the understanding that no single author fully embraces the pure model. These are ideal types that emphasize each response’s strengths and weaknesses.

2 Sovereigntism

Sovereigntism is a view that seeks to make the sovereign people congruent with the territory, because only this alignment justifies state institutions. It relies on two grounds for territorial sovereignty: ownership (as when a people owns its national territory) and the self-determination of peoples. Both ultimately depend on the autonomy of individual persons (Stilz, 2019).

For sovereigntism, territories mark the limits of administrative units where governments can protect an individual’s basic liberties and organize to meet a society’s needs. Only a state that makes the people and the territory congruent can protect these liberties. Since, for sovereigntism, it’s those liberties that ground the whole states system, the congruence is the ultimate moral basis of international order. Sovereigntism admits that such congruence is never fully achieved, but considers it the normative ideal underlying the whole global structure.

Now, sovereigntists would be the first to admit that such congruence is often challenged – as it is when people move across borders, or when the border “shifts,” that is, when territory changes as the legal jurisdiction of state officers extends beyond the official limits of the state. When any of those occurs, sovereigntism seeks to bring the three elements back into alignment, by rectifying territory through popular referenda, or by fortifying borders and limiting immigration.

But if finding alignment is too difficult (because there are large groups of undocumented migrants, or because it is hard to sort economic migrants from asylum seekers, for example), sovereigntists will sacrifice the internationally sanctioned rights of asylum seekers to make sure that there remains a tight connection between the domestic people and the territory, even if this means that the rights of citizens are at the expense of human rights for all.

Sovereigntists hold that peoples have exclusionary territorial rights. Hence they have the right to ban noncitizens from their territory. So, although sovereigntists may recognize that refugees have rights to a place to live and the right to belong to a community that enforces their rights, they do not see an immediate obligation to take in people who have not touched their borders. Although they accept that all states must recognize human rights, they also see many of those as unenforceable rights against particular states. Specifically, they see no obligation to enforce universal obligations beyond their territories (Miller, 2016; Walzer, 1983).

When people, territory, and rights do not align, sovereigntists will prioritize the relation of people and territory in the context of assigning rights. Sovereigntists hold that the migrants’ interests should be protected by their home state and that each state has special obligations to its own constituents. On their view, states have an obligation to take in migrants who cannot meet their basic needs and are not secure or oppressed in their home country, but they don’t believe there is a human right to emigrate, and thus no duty to take in economic migrants. Moreover, given that international obligations to asylees are unenforceable, sovereigntism sees them as humanitarian concerns, rather than legal obligations. So current citizens have priority (Stilz, 2019: 208).

In practice, when rights and people do not perfectly align with territory, sovereigntists default to prioritizing citizens’ rights. When there are many people-out-of-place, they will be perceived as a crisis to the state (Mountz, 2020). Sovereigntists will first seek alignment of people and territory, and then will turn to the migrant’s international rights. Moreover, sovereigntists will hold that officers of the law should stay within their territory. If there is a choice between maintaining the sovereignty of the people within the state and protecting the rights of individuals at the border or beyond the border, sovereigntists will choose the first. (If a third country is effectively performing obligations of the sovereign state, as in the example given earlier, where Mexico takes in asylum seekers on behalf of the United States, this will be seen as a concern for the third state.)

Unfortunately, by valuing the link between people and territory above all else, sovereigntism gives states a chance to stretch the law and overlook international rights of nonnational individuals. Sovereigntism has thus often been used to sustain the status quo and to justify practices and institutions that verge on illegality (Cohen, 2020). For this reason, it clashes with our second response to the problem of externalization, which emphasizes the connection between the people and rights.

3 Democratic Cosmopolitanism

Democratic cosmopolitanism sees legitimacy in terms of universal rights. States are necessary because they are the locus where democracy can occur, but this practical need for institutions is secondary to the normative value of universal rights. Therefore, the people (as the ground of democracy) can be imagined as untethered to territory, given that the priority is attending to individuals’ rights, wherever they happen to be.

Democratic cosmopolitans are willing to accept changes in the traditional conception of territory and tolerate shifting borders, as long as state citizens and officers carry their international law obligations with them when they stray beyond official limits of territory. On this approach, as in maritime law, the “law follows the flag.” That is, the law is expected to move in lockstep with the shifting border (Shachar, 2020b). Because, from this perspective, rights are still justified in democratic terms, the law remains connected to the people and aligned with universal rights regardless of the jurisdiction (Benhabib, 2006), and thus the triangle corners of rights and people remain steady, even as the territorial border moves.

In its ideal version, democratic cosmopolitanism can make the shifting border acceptable because, as long as the shifting border (as a legal institution) carries democratic law with it, those who encounter officers of the state will be able to exercise their rights as if they had reached the official limits of a state’s territory. That is, the country whose borders are shifting will keep the democratic character of its institutions by connecting its people and the rights that they should enforce, but their jurisdiction would not be strictly territorial anymore.

A clear example is when migrants in boats are detained by a country’s coast guard on the high seas. The officers should not be able to claim that the migrants’ boats are not under the detaining country’s jurisdiction because jurisdiction is not exclusively territorial jurisdiction, it is primarily the ability to exercise effective control over people (Shachar, 2020b: 138). This fluctuation of the border is permissible on democratic grounds, because both state and international law should comply with democratic decision-making (from each country) such that institutions carry legitimacy with them. Every jurisdiction (even shifting and overlapping legal jurisdictions) can be legitimate provided that for every decision there are democratic inputs (somewhere). Democratic cosmopolitans would accept externalization, provided that the agreements between countries were transparent, and they made international rights available to individuals when they encounter officers – regardless of location (Shachar, 2009: 75).

For democratic cosmopolitans, the solution to externalization is to reinforce the possibility of asylum rather than to curtail it. Unlike sovereigntists, cosmopolitans are not committed to containing peoples within a given area, because rights, for them, do not depend on having territorially limited institutions. Here universal rights (filtered through democratic law) have priority over sovereign concerns. In this view, deterritorialized jurisdictions could still offer the protection of the law, because the official who exerts control or detains the migrant (wherever they happen to be) carries with her the law of her state. The aim is to prevent lawless situations where asylum seekers or migrants have no legal protection.

By relinquishing the connection or rights and territory, however, democratic cosmopolitanism puts into question the legitimacy of the territorial state system, even if there is still an official territory of each country and if this detachment occurs only in cases of border control. If we detach law from territory (such as in the examples of officers encountering asylum seekers on the high seas), then we may also detach law from the democratic power of the people who inhabit a country where the extraterritorial officer happens to be (such as the cases when officers from one state police their borders inside a second country with help of local law enforcers). In practice, the distinction between citizens and aliens always creates hierarchies, and democratic laws (of foreign officers and locals) can conflict. Thus, shifting borders extend the jurisdictions of powerful states, and gives them excuses to exercise influence beyond their borders.

In the example of the United States, Mexico, and Central America, extraterritorial US’ reach is seen as an imposition of a strong state over its weaker neighbors. When Mexican officers detain migrants from Central America, they are still Mexican officers in Mexican territory. Theoretically, they are working under democratic law, and they have a full right to detain undocumented migrants – but they wonder “Who am I working for?” – as Campos-Delgado and Côté-Boucher’s (2022: 5) ethnographic work with Mexican migration officers reveals. If these officers believe that they are effectively working for the United States, then the immigrants that they detain are under the de facto control of a foreign power. If US advisors and officers who now exert this power indirectly were to also wield de jure power in Mexican territory, matters would be openly colonial.

The idea that officers carry the law with them is attractive for democratic cosmopolitans in cases when asylum seekers seek relief. This is clear when asylum seekers try to “touch base” to get legal protection from a state to which they want to migrate, or when they encounter Frontex officers who skirt responsibilities because they do not respond to any particular state’s democratic law (Sandven, 2022). In those cases, it is desirable that officers carry their law with them. However, their presence would also have a profound impact in other domains. There are many circumstances besides migration where the deterritorialization of jurisdiction would allow foreign officials to formalize their influence over weaker states. For example, if state officers’ legal power abroad becomes de jure, then the military advisors typically used abroad by strong states would become legally sanctioned decision-makers. This could effectively undermine the power of the democratic peoples affected. The question of asylum would morph into many other questions of territorial sovereignty, such as when should other countries’ officers be present, or when should extraterritorial law be applied? Such questions create jurisdictional conflict and also worries that the stronger are imposing on the weak.

Moreover, when officers carry their law beyond their territorial jurisdiction, they may undermine other advantages of the connection of law and territory. The spatialization of law that occurred in early modernity has problems, but it also has many advantages: The most important is that –in theory – the law applies evenly to all in an area, rather than selectively through personal status. Yet the externalization of borders and the deterritorialization of law reinstates a form of personal jurisdiction – or the power that a legal order has to decide regarding an individual because of that individual’s status, independently of their location (a good example of these are courts martial, premodern canon law, or selective rights owing to a person’s migratory status). What makes it possible for the law to follow individuals beyond a state’s territory also gives the state more power to discriminate internally and intervene externally. Thus, a new order of overlapping territorial and personal jurisdiction can threaten democratic equality between persons and between states.

Finally, when migrants ask for asylum from afar, it makes it harder for the migrants who are already present in a given territory to claim rights on the basis of presence. Presence – and particularly extended presence – then ceases to be a proof that those who are here are within a country’s jurisdiction and already part of the social order.

4 The Watershed Model

In current discussions, it may seem that sovereigntism and democratic cosmopolitanism are the only approaches available. Yet there is a third corner to the triangle. This response to shifting borders turns to territory. It holds the corners of territory and rights in their place, and it does away with the people as a fixed group defined by citizenship. I call this response to shifting borders the Watershed Model, because it takes geographic features and the environment into consideration (Ochoa Espejo, 2020). As a response to current practices of migration policing (particularly “externalization”), the model seeks to keep the legal border at the border. But rather than imagining territory as a container or as the private property of a given identity group, the model values the presence, the material relations and embodied practices, and the political participation of those who happen to be in the territory, regardless of their legal status. The Watershed Model therefore sees the subject of politics in terms of presence and material relations, rather than identity. That is, while it holds territory steady and develops the law in relation to that space, it allows for movement across borders and it gives rights and responsibilities to those who are here – where “being here” refers not only to the presence within legal boundaries (Bosniak, 2007), but also to the relations of those present in a given space with the environmental facts that shape their life in common (Carens, 2013; Shachar, 2009).

Like the other two responses, the Watershed Model arises from concern for legitimacy. Legitimacy arises from respect for democratic law-making, but unlike the other two responses, here the demos is not imagined as a group defined by legal status; instead, it is defined by presence within a jurisdiction. This response highlights that the main purpose of the current shifting borders is to keep people out of the territory, or to make distinctions between people who are deemed worthy of refuge and those who are “only” economic migrants. When states move the border to prevent migrants from reaching their legal territory, or when they extend the mandate of border patrols and immigration police within the territory, they work with the assumption that people can be separated into groups according to their legal status. That is, in those models there is an assumption that the law applies differently to some people. However, through the Watershed Model as a lens, all are equal. Democratic legitimacy requires that all persons are equal under the state’s territorial jurisdiction. Thus, the Watershed Model clarifies why “no person is illegal” and why undocumented people who have been living in the state can demand rights solely because they are already there (Ochoa Espejo, 2015).

To ensure that there is democratic legitimacy, the Watershed Model holds territory and rights steady, but the model also recognizes that we cannot stop all movement across borders. To deal with the mobility underlying shifting borders, it does not try to move the scope of national law to catch up with the expanding power of the state, nor try to realign people and territory at the expense of those who cross. Instead, it seeks to dissolve the assumptions that there are different personal statuses within a given territorial jurisdiction. For the other two positions (which seek alignment of people and territory or of people and rights) a person can be either a citizen or an alien. A person could even be an exception to the law, either because they carry extraterritorial obligations or/and immunities or because they are undocumented and have no clear status. But for the Watershed Model, these distinctions do not carry legal weight. They are associated with the selective application of laws on people with different legal statuses, and thus are antithetical to the equality that grounds legitimacy in democratic orders.

To define political participation by presence, the model focuses on place-specific political obligations. Like actual watersheds, territories create unique obligations among those who are within a given space, and these obligations, in turn, establish unique localized and political collectives. Just as each member of a nation has special obligations to other nationals, so too do those who are present in a space have special obligations to those who are physically near them. A good example of place-specific obligations is the watershed responsibility we have not to pollute water for those downstream. Place-specific obligations are tightly connected to governments because they guide administrative and political decisions that coordinate collective action in particular places. These decisions determine how we create territory and how we design urban and rural areas: how we circulate, how we plan cities, and how we think of private, public, and sacred spaces. In this sense, the Watershed Model formalizes place-specific obligations – and indeed rights – in a given territory.

But if territory and rights are held in place, and if participation is defined by presence, this model seems to favor those who are already settled in a given area. What does this mean for those who move? And particularly, what does it mean for migrants, or asylum-seekers? In practice, of course, not all territories are the same. Individuals tend to flock where there are more opportunities and less insecurity, which incentivizes states to create a model that is “hard on the outside and soft on the inside” (Bosniak, 2006: 4). How does the Watershed Model deal with the soft inside/hard outside?

The response is that the hard exterior arises only when rights given by presence are superimposed on a model of identity membership (where the people is defined by ethnic or national identity and/or citizenship). When rights are defined by identity, countries have incentives to keep aliens out, but when citizenship is defined by presence exclusively, then the emphasis is on making sure that those who come in perform their place-specific duties, rather than on preventing their entry. (And the incentives to those who seek to enter change as well, because the rights that one acquires through entry are place-specific rights, rather than privileges of identitarian belonging.) In practice, this means that a model that seeks to keep territory and rights in place is compatible with human mobility and even open borders.

In the literature there are many examples of how the sovereigntist and the democratic cosmopolitan models look in practice, but there are far fewer on the Watershed Model, and at first it may sound like an environmental utopia. In actuality, the model has already been widely used (Ochoa Espejo, 2020, 218–221, 232–233, 264–271), but neglected by scholars. Although this third type of response to shifting borders seems unlikely nowadays because of the racialized and xenophobic European and American responses to asylum crises in the early twenty-first century, a watershed approach has been tried in the past, and it may become more common in times of planetary emergency.

5 Movement and Politics in Times of Planetary Crisis

In the long term, the Watershed Model can better respond to the challenges of shifting borders in times of planetary crisis because it can better accommodate large migrations, which will not stop in the future. Moreover, this third response can be used to coordinate action across borders, particularly when it comes to international concerns such as global poverty and climate change. The model also better allows for bottom-up political movements, and it better accommodates spontaneous activism from migrants and communities (such as indigenous groups) who try to defend democratic practices and resist inappropriate intervention from the state.

The Watershed Model reacts to shifting borders by rejecting the legitimacy of immigration control beyond the legal border. Because it emphasizes territory, it highlights local obligations – particularly those related to development and material resources. In its ideal version, it focuses on sustainability, specifically in the relationships of residents to the land and environment. The focus on material relations to the land also downplays differences in identity (whether ethnic or civic) among those present in a given area.

The model is not only an aspiration: Identity has not always been emphasized, criminalized, or racialized across borders as it has been since the early 2000s. A good example of this can be found in Mexico’s southern border before the United States put pressure on Mexico to control migration from Central America (that is, before border externalization). For all practical matters, Mexico and Guatemala had open borders before the immigration panics in the 1980s and 1990s. Moreover, Mexico had a generous asylum policy for refugees from the Guatemalan civil war (Herrera & Ojeda, 1983).

While the current US border has shifted location and moved deeper into Mexico (as the US becomes more concerned with Central American immigration), prior US interventions in the area were different. Before the 1990s, intervention was ideological and geostrategic. In the 1970s and 1980s, the US pressured Mexico to police the border on the assumption that leftist guerrilla warfare could spread from the South. The then prevalent “domino theory” saw Mexico as a dam against the spillover of communism in the region.

The Mexican state also had other concerns in the area. During the 1980s and 1990s, its fear of revolution in Chiapas led the government to pour resources into development programs, agrarian reform, and other policies focused on agricultural communities. All of this happened while refugees from the civil war in Guatemala poured into the country and were resettled in refugee camps (in fact, new towns), that the Mexican government provided for decades (Paz, 1985). These policies were not explicitly developed with sustainability concerns in mind (the government was certainly not using a Watershed Model explicitly!), but they clearly illustrate that even in the nonideal circumstances of the last century, states governed borders in different ways, and often these did not require racialization, securitizing migration, segregating refugees, or shifting borders.

The Watershed Model response to shifting borders also helps to understand the role of borders beyond migration control. States do not only shift or reorganize borders for the purpose of regulating migration, but they also shift practices for geostrategic purposes and when they seek extraterritorial control of natural resources (through mining, industrial agriculture, or water management). The Watershed Model recognizes these concerns, and seeks to address states’ policies at this deeper level by focusing on the connection of rights and territory, which distinguishes this corner of the triangle from democratic cosmopolitanism (and unlike sovereigntism, here the territorial emphasis is not on the territory as the people’s property, but rather on the rights and obligations relating people to environment). This response also helps us understand grassroots political reactions against state policies at the border – particularly to see the responses from those who are at the crossroads of state power.

For example, recently, the connection between territory and rights has been taken up by indigenous rights activists (Bryan, 2012). When faced with environmental destruction, indigenous activists in Latin America began transforming the traditional meaning of the word “territory” as “an area of land claimed by a state” (Storey, 2020: 1). Instead of envisioning territory as the geospatial limits of a state depicted on a map, these activists considered the relations that their communities had established with la tierra – the land – as a source, sustenance, and a way of life; giving rise to “new forms of mobilization and citizen participation focused on the defense of the commons, biodiversity, and the environment” (Svampa, 2019: 27). Hence, they severed the old association between “defense of territory” and military or nationalist purposes, instead tying it to political struggles against environmental degradation. In fact, according to Víctor M. Toledo, “the defense of territory and territoriality is the most visible programmatic feature of the varied environmental struggle and movements of Mexico and Latin America” (Toledo, Garrido, & Barrera-Bassols, 2015: 136). Defenders of territory have sought to stop multinational corporations (who are often in cahoots with national governments) from gouging natural resources out of areas that sustain traditional ways of life. To prevent exploitative extraction of minerals or agricultural products (often justified in the name of national sovereignty), they embraced a conception of territory where ethical relations to the land have moral priority over popular sovereignty or the national will (Svampa, 2019; Toledo et al., 2015).

On this conception, political obligations and rights do not fall like manna from heavenly principles onto individuals through the medium of state institutions. Instead, rights and obligations grow out of local norms and struggles. Communities and individuals relate to each other through mutual obligations mediated by the land, and they take responsibility for reproducing life in the places they inhabit. These obligations are justified when they support sustainable patterns of resource use – particularly water use. For these “defenders of the water and the territory,” rivers and watersheds stand in for valuable relations, which must be understood as connections among people, animals, and things (Svampa, 2019: 46). Hence, it is not national sovereignty or territorial independence that justifies and defines territory, but rather environmental sustainability. As a result, this third response to shifting borders can accommodate transnational indigenous movements that feed on local politics to resist state control at the border and across it.²

In the same vein, the bottom-up activism of migrants who organize in caravans or of citizens who help people on the move is also better captured by a model that sees rights as emerging from participation rather than as a prerogative of the state and its officers. In recent years, the movements of asylum seekers who organize show that local participation and the connection of local movements has transnational effects (Hidalgo, 2015; Mountz, 2020).

The Watershed Model can counter the effects of state policing, allows us to understand and incentivize grass roots movements, and has the added advantage of preparing us to deal with the inevitable movement of people that will increase owing to planetary crises spurred by climate change. If shifting borders are a problem because they undermine the rights of people on the move and trying to restore an ineffective static model is not a promising solution, the Watershed Model offers a source of legitimacy while curtailing the excesses of border control.

Conclusion

The three responses to shifting borders show how states, practitioners, scholars, and activists react to movement across borders, and each of them highlights important values.

Today, the lives of asylum seekers are at stake. These people have a right to have their asylum cases heard, and states should not make their journeys harder. The urgency of this situation demands that scholars propose alternatives to the current management of borders and undo the illegal tendencies of shifting borders. Current proposals for what to do are likely to fall under one of the three responses modeled here: sovereigntism, democratic cosmopolitanism, and the Watershed Model. Sovereigntism seeks to align people and territory, because it prioritizes the rights of current citizens. Democratic cosmopolitanism proposes that rights and people align, such that the law follows its officers wherever they happen to be, even when this movement sacrifices the traditional limits of territorial jurisdiction and other states’ independence. Finally, the Watershed Model emphasizes the connection of territory and rights, and focuses on presence rather than identity. Each of these responses may be appropriate in some circumstances, but in our current moment, we may need to think in terms of watersheds.

I believe that the current migration crises are just one aspect of a wider challenge to democratic governance, and this challenge will worsen as planetary crises created by climate change and lack of vision in environmental sustainability multiply. As hurricanes, floods, heat waves, and pandemics become only more common, migration will only increase. The Watershed Model of borders and border control proposes long-term solutions and aspirations for people on the move, and tools for those who stay behind to deal with the territories that are themselves vulnerable to the crises to come. In the long run, only self-organizing of localities and the people who are there – even if only in passing – will be the ground for democratic governance.

15 Shifting Borders, Shifting Political Representation

Svenja Ahlhaus

How can we rethink contemporary border politics from the perspective of democratic theories of political representation? As Kimberly Smith writes, “[l]ike any good magic trick, political representation is achieved through artifice, it takes clever institutional design, a rich tradition of political practices, and some imagination and creativity” (Smith, 2011: 102–103). The guiding idea of this chapter is that the “magic” lens of political representation can help us in analyzing and evaluating the normative ambivalences of border politics. Political representation can be deterritorialized and reterritorialized, it can be transformative and dynamic, it can be symbolic, expressive, inspiring, but also exclusionary, disempowering, and desperate.

States now use a number of policy instruments and soft laws to remake their border regimes (Shachar, 2020b). If border politics is informalized, it becomes more difficult for citizens to shape such regimes politically. It often requires legal knowledge and takes time to even follow recent migration and asylum policy. The global reach of many border policies and the confusing variety of instruments make it difficult to identify, contest, and intervene in the formulation of specific norms (Owen, 2014). It is no surprise then, that scholars refer to the global border regime as a shape-shifting “beast” (Fine, 2020: 109; Shachar, 2020b).

How should democratic theorists react to these developments? There is a long-standing and growing debate about refugee agency and self-representation (Boudou, 2023; Malkki, 1996; Schmalz, 2020; Walia, 2022). On the one hand, the inclusion of migrants and refugees in political decision-making seems crucial to ensure that their voices are not ignored. On the other hand, there is the “risk of burdening the most vulnerable with their own defense” (Benhabib, 2018: 120). This echoes the fundamental dilemma identified in migration studies between migrants’ vulnerability and agency, that is, between the imperative to highlight the vulnerable status of migrants without ignoring their (potential) role as autonomous political agents (cf. Lenette et al., 2020).

In this volume, we find different strategies to deal with this fundamental problem. Frédéric Mégret aims to show how the border regime undermines refugee agency in choosing where to claim asylum (Mégret, Chapter 5) and Eva-Maria Schäfferle discusses models for including migrants in migration governance and proposes a demoi-cratic approach (Schäfferle, Chapter 16).

My starting point is recent political practices and claims for political inclusion and representation by refugees and migrants. “Nothing about us without us” has long been the slogan of refugee and migrant self-organization in border politics. In recent years, refugees have been recognized as “stakeholders” in a variety of forums (Harley, 2021; Harley & Hobbs, 2020; Schmalz, 2020). Refugees do not only get a “seat at the table” but self-organize in a variety of spaces. Consider the 2018 Global Summit of Refugees self-organized by refugees, which included seventy-two refugee participants from twenty-seven host countries. The Summit was the “the first ever international gathering of refugee by refugees” (Global Summit of Refugees, 2018) and it recommended a new “international platform for refugee participation and self-representation […] made up of a representative network of refugee community organisations, initiatives and change-makers from around the world” (Global Summit of Refugees, 2018). The question I want to pursue is: How can we take these developments seriously, and examine their emancipatory potential, without ignoring the continuing political domination of refugees and migrants?

I argue that a critical analysis of contemporary border politics should focus on the plurality of representative practices that have emerged in its context. Specifically, I argue that scholars in the tradition of reconstructive critical theory could benefit from insights of the recent constructivist turn in representation theory for diagnostic purposes, yet should not follow this literature’s antinormative streak. I start with the idea of reconstructive migration theory (Section 1) before providing a short overview of the recent debate on political representation in political theory (Section 2). Subsequently, I highlight three ways in which insights from representation theory can improve reconstructive migration theory (Section 3). Finally, I turn to the normative pitfalls of seeing “political representation” everywhere (Section 4).

1 Reconstructive Migration Theory

The current European border regime systematically undermines human rights and the Refugee Convention (Benhabib, 2020; Shachar, 2020b). In a recent statement, the United Nations High Commissioner for Refugees (UNHCR) condemns the “increasing number of incidents of violence and serious human rights violations against refugees and migrants at various European borders, several of which have resulted in tragic loss of life” (United Nations High Commissioner for Refugees, 2022). In a similar vein, scholars report on the “entrenched and pervasive nature of human rights violations in the context of migration control,” such as “beatings of irregular migrants by state security services and private militias; arbitrary deprivation of liberty in inhuman and degrading conditions; deliberate family separation; detention and other mistreatment of children” (Costello & Mann, 2020: 311). Refugees are prevented from claiming their rights to asylum and pushed back to transit states, or left to drown in the Mediterranean Sea. Refugees suffer brutal treatment by border guards, while European governments condone or overlook abusive border policing.

The current political context challenges critical theory’s commitment to reimagining political norms and institutions based on a reconstruction of the emancipatory potentials hidden in established practices. Does it still make sense to look for emancipatory potentials in times of fundamental political regression? Reconstructive approaches in migration theory, such as those applied by Seyla Benhabib and Ayelet Shachar, turn to recent legal and political developments not only as starting points for a thorough critique of changing border politics, but also to highlight emancipatory practices, moments of rupture, and countermovements (Benhabib, 2011: 138; Shachar, 2020b, 2022b). I call this methodological approach, which they both to some extent share, “plural reconstruction.” This approach moves beyond the opposition of ideal and nonideal theory and provides a path for connecting critique of politics with proposals for new (and better) institutions. What is important is that plural reconstruction takes a plurality of perspectives into account. It does not build on a single participant’s perspective but reconstructs different perspectives. Such a reconstructive method has advantages in the context of newly emerging and deeply contested practices such as global border politics where other reconstructive approaches, such as Habermas’ method of rational reconstruction, cannot do their work (Ahlhaus, 2022).

Aiming to resist regressive border politics, especially in times of shifting borders and new sovereigntism, reconstructive approaches proceed in four steps (Ahlhaus, 2022: 713). First, they provide a critical remapping of the current political landscape by redescribing and framing the changing political context. Here, we can think of Shachar’s idea of the shifting border as a critical concept to understand the changing nature of borders and boundaries, or Benhabib’s diagnosis of a “dual movement of deterritorialization and territorialization” (Benhabib, 2020: 78; emphasis in original). The second step involves the reconstruction of the normative meaning of a practice from different perspectives. Instead of focusing on migration from the perspective of “the state” or of citizens of receiving states, Shachar proposes a “migrant-and-mobility-centered perspective” (Shachar, 2020b: 16) and Benhabib offers a critical cosmopolitan perspective that shows why “‘seeing like a state’ is not the sole perspective when thinking about the refugee problem” (Benhabib, 2020: 95). In the third step, the method of plural reconstruction involves the reconstruction of emancipatory potentials in existing practices. As Shachar writes, contestations “erupt from cracks in the machine, seeping through its fault lines of injustice and inequality” (Shachar, 2022b: 617). We are looking for the “tools of resistance [which] are in part contained in the practices that sustain the shifting border’s amorphous form of unmoored power” (Shachar, 2022b: 617). For Benhabib, the concept of ‘democratic iterations’ has descriptive and normative functions. Here, the concept captures emancipatory elements in political practices, describing how new political subjects enter the political stage and claim a say, or novel ways in which democratic communities collectively reinterpret human rights (cf. Ahlhaus, 2022; Benhabib, 2011; Volk, 2022).

In the fourth step, plural reconstruction systematizes the emancipatory elements in existing practices, with the goal of proposing new democratic institutions, reimagining the division of labor between theorists and citizens. If we look at Benhabib’s and Shachar’s works on border politics, differences emerge in terms of how they understand their constructive contributions, that is, the final step of plural reconstruction. Both see theorists and (non)citizens alike as important agents in rethinking border politics. In Shachar’s words, “today’s explorers of law, politics, and human geography – academics and migrants alike – are encountering new and increasingly sophisticated methods of re-bordering and imagining novel forms of resistance” (Shachar, 2020b: 217). Yet, while Benhabib proposes a democratic procedural path forward involving the normative idea of fair, just, and inclusive “democratic iterations” (Benhabib, 2011), Shachar points to policy innovations that would change the access to rights for migrants (Shachar, 2020b).

The method of plural reconstruction serves both to criticize existing political conditions and to sketch ways in which they can be overcome by the participants themselves. However, it often remains open how we can get from emancipatory potentials to transformative change. In the following, I aim to show that recent developments in representation theory can provide conceptual resources for reconstructive migration theory.

2 Political Representation in Recent Democratic Theory

Political representation is a key concept in political theory and political science (Urbinati & Warren, 2008). In recent years, the scholarly discussion has moved away from the so-called standard account according to which political representation is “understood as a principal agent relationship, in which the principals – constituencies formed on a territorial basis – elect agents to stand for and act on their interests and opinions” (Urbinati & Warren, 2008: 389). Since the early 2000s, the idea of “representative claims” has taken a central place in the debate (Saward, 2010). The key idea is that political representation is the “contingent product of ‘representative claims,’” which means that representation arises in contexts where “myriad actors make claims to speak for others (and for themselves)” (Saward, 2019: 278). Many representation theorists argue that we should separate the descriptive and normative dimensions by first asking if this is (a case of) political representation. And only then, is this adequate, successful, good, or legitimate political representation? This enables us to analyze actions and claims as “political representation” without automatically granting these practices the status of “democratic” or “legitimate” representation (Rehfeld, 2006). Constructivists follow this idea but make two more fundamental claims.

First, constructivists argue that political representation is “constitutive” and “mobilizing” in the sense that representative claims create constituencies and their interests – contesting the prevalent assumption that representatives identify preexisting interests of groups, which are then “represented” in parliament (Disch, 2021). Constructivist scholars “hold that political representation evokes the represented, shapes social conflict, and escapes the discipline of election” (Disch, 2019: 178). Second, political representation is a dynamic practice. Saward has developed the idea of a shape-shifting representative as a “political actor who claims (or is claimed) to represent by shaping (or having shaped) strategically his persona and policy positions for certain constituencies and audiences” (Saward, 2014: 723). This idea refers to individual leaders and their patterns of changing positions and claims, but Saward also proposes the more general idea of “liminal representation” that includes the changing character of political representation, between electoral and nonelectoral, formal and informal, institutional and noninstitutional (Saward, 2019: 279–280). The idea is that theorists “can productively embrace representation’s liminality, developing fruitful analyses that track its changeable character” (Saward, 2019: 276; italics in original).

The standard account of political representation asks questions about authorization, accountability, and responsiveness. Constructivists propose to widen our perspective and to “embrace the enigmatic and sometimes troubling” features of political representation (Saward, 2014: 735). From the perspective of democratic theory, this is an ambivalent project. It enables a broader analysis of representative practices and allows, for example, to understand migrant protests, advocacy nongovernmental organizations (NGOs), and symbolic campaigns as representative politics. In addition, it opens the analysis for contexts beyond the state and beyond territorially bounded constituencies. On the other hand, this analytic richness seems to go along with normative deficits, especially if we accept the claim that we should overcome a “selective normative-led picture” (Saward, 2019: 285) of political representation. As Sofia Näsström points out, “[e]lection is territorially confined, whereas representation is everywhere. The question is whether this asymmetry constitutes a problem for democracy” (Näsström, 2011: 508). I will turn to the normative problems later (Section 4), and will first look at border politics from the perspective of constructivist representation theory. The aim is to see how the constructivist perspective on political representation can strengthen reconstructive migration theory.

3 Shifting Political Representation in Border Politics

How can reconstructive migration theory benefit from recentering the concept of political representation? If we follow the constructivists’ analytic (i.e., nonnormative) perspective on political representation, a number of practices and claims come into focus that we would not have seen as political representation on the standard account. To look beyond elections, principal–agent relationships, authorization, and accountability enables us to see a more diverse set of practices, including different spaces, subjects, and demands.

a Spaces

If we want to paint a picture of the variety of representative claims by refugees and noncitizens in border politics, we can start by distinguishing different spaces at different levels. There are representative practices at the local level (e.g., when refugees criticize their housing conditions in receiving states), at the national level (demanding access to parliament), at the supranational level (e.g., contesting EU policies), or at the global level. At the global level, the 2016 UN Summit on Refugees and Migrants as well as the two Global Compacts in 2018 and the Global Refugee Forum 2019 are the most recent attempts to change the global migration regime (Schmalz, 2020: 151). The 2018 Global Compact on Refugees and the Global Compact for Safe, Orderly and Regular Migration include “refugees themselves” among the stakeholders.

On all of these levels, representative practices take place in weak and strong public spheres. Some scholars use the distinction between “invited” and “invented spaces of participation” to discuss the different modes of action for refugee inclusion.¹ Invited spaces of inclusion encompass all political forums where refugees gradually gain a “seat at the table” and are invited to advocate for their interests and present their perspectives. Refugees do not themselves set the agenda or organize the political forum. Invented spaces of inclusion, by contrast, describe refugees’ self-organized political forums. Refugees meet in informal and often temporary political assemblies where they control the agenda and terms of the debate. Invited spaces ask refugee representatives to adapt to the specific agendas and rules to count as representatives. In invented spaces, by contrast, the same individuals and groups can raise different representative claims.

Consider the first “Refugee Parliament” (Geflüchtetenparlament) that took place in June 2021 in Switzerland. This assembly differed from similar institutions in its high degree of organization and detailed policy work. Refugees joined different policy committees (health, housing, political rights, etc.) and participated in four online meetings before joining the (unofficial) parliament. The Refugee Parliament passed a thirty-page document with demands which were presented to members of the (official) Swiss parliament. This Swiss forum builds on a long history of refugee assemblies and parliaments as invented spaces of inclusion (Ataç, Rygiel, & Stierl, 2016). There are countless cases of refugee self-organization and self-representation. In their “Manifesto,” a group called “Refugees in Libya” described how they applied for asylum individually but after raids, evictions, and detentions in October 2021, “we understood we had no other choice than start organizing ourselves. We raised our voices and the voices of the voiceless refugees who have been constantly silenced. We cannot keep on going silent while no one is advocating for us and our rights. Here we are now to claim our rights and seek protection” (Refugees in Libya, 2021). In 2017, the Network for Refugee Voices was established to challenge the “Refugee Representation Gap” (Network for Refugee Voices [NRV], 2022) in policymaking on issues of forced migration (UNHCR, 2017).

Invented spaces of inclusion are self-organized political forums for and by refugees. Self-organization describes the practice and “the idea of building resistance, political events, and initiatives based on the condition of a social group affected by specific structures of power and domination” (Odugbesan & Schwiertz, 2020: 150). Invented spaces are often created when affected groups are misrepresented or ignored. An advantage of invented spaces is that they provide opportunities for community-building. Owing to the nature of forced displacement, self-organizing is a challenge for refugees (because of limited time and resources, unsafe housing, or competing political priorities). Such assemblies provide spaces for encounters among refugees to share their stories and to discuss potential policy goals (Odugbesan & Schwiertz, 2020). They debate and formulate their demands and present them to the wider public. As refugees themselves set the agenda, they can freely choose their topics and the style of their contributions.

A limitation of these spaces (and a major difference from at least some of the invited spaces) is that they are situated outside strong public spheres. The energies and resources necessary to organize a refugee parliament should not be underestimated, but they are hardly recognized by decision-makers. Advocacy in invented spaces often leads to calls for improved invited spaces. The Global Summit of Refugees, for example, demanded that “Refugee-led organisations and networks must be guaranteed a seat at the negotiation table at all levels (local, state, regional and international) to raise the concerns of affected population in policy and decision-making fora relating to forced displacement” (Global Summit of Refugees, 2018, emphasis added).

In both types of spaces, refugees take on the roles of activists or members of civil society organizations or NGOs who self-advocate for refugee interests. The same individuals and groups can join invited and invented spaces of inclusion. They are included in formal institutions such as consultations in international organizations, but they also organize bottom-up spaces of self-representation.

b Subjects

Political representation is practiced by different subjects. There are modes of self-representation, of self-appointed representatives, or advocacy groups acting for refugees, and a number of NGOs and solidarity movements who interact in specific contexts. Migrants and refugees are an extremely heterogeneous group (based on nationality, race, class, gender, religion, political conviction, etc.). One idea we can take from constructivist scholarship is that representative claims bring about specific constituencies. Of course, there “are” migrants and refugees even if nobody claimed to speak or act for them, but as a political group, refugees are formed through claims of representation. Representative claims can be mobilizing; they invite identification and contestation. If we go back to the idea of the “magic trick,” this seems to be one of the key moments. Representing noncitizens creates a new constituency. Consider the example of the blog “Detained Voices”: “We are the freedom to move, to settle down to act. We will take it as our right. In the name of all those who did not make it here, and to save ourselves, and for all those who want to make it out here” (Detained Voices, 2019). In this example, the “gilets noirs,” a group of undocumented refugees in France, create a constituency of those who managed to cross the border and those “who did not make it here,” but also “those who want to make it out here.” The community is expansive; it is a group of people with a shared experience of moving and crossing: “There are no names for those they deport; they bear all of our names” (Detained Voices, 2019).

Representative claims create different constituencies. Consider the struggle against different legal categories for groups of refugees in Germany in 2018. There are a number of different legal categories for refugees and asylum-seekers in the German legal system, depending on the individual’s nationality, their arrival, their current housing situation, and so on. As Perolini shows, “externally assigned categories and exclusive identities can provide opportunities for oppressed groups, including migrants with precarious legal status, to mobilize collectively and to disrupt some aspects of the status quo” (Perolini, 2022: 2). Different grassroots activist groups challenged the legal classifications assigned to them and collectively identified as “refugees” instead. Although they did not frame it in this way, we could say that they created a new constituency crossing different legal status ascriptions, creating a new collective of refugees that goes beyond the legal category of refugee. As Disch describes, such a process of creating a new constituency and mobilizing a new group is at the heart of political representation (Disch, 2021; Perolini, 2022). In the example, the group is characterized by a shared experience within the German asylum system that they consider arbitrary and unjust. Based on this shared experience, the new constituency identifies with demands such as equal access to social and political rights irrespective of an individual’s specific legal classification. As Steinhilper shows, some years earlier, in the same political context, refugees contested the shared identity as “refugees” and instead self-identified as “noncitizens” who do not have the same legal rights as recognized asylum-seekers (Steinhilper, 2021: 138). In short, constituencies constructed through political representation can adapt to changing legal and political circumstances.

c Demands and Perspectives

As the distinction between spaces has shown, speaking and acting for refugees and advocating for their rights and interests can take place in different settings – but it also differs in style. The representative repertoire is diverse and encompasses disruptive moments of intervention as well as constructive proposals for changing specific legal norms. Refugees write manifestos, call to action, build networks, and demand access. They occupy squares and buildings (on the occupation of Oranienburger Platz in Berlin, see Steinhilper, 2021), they march (Celikates, 2022). Migrant self-organizations change their policy demands, their register, and their appearance according to different representational spaces. Claiming legal status is not the “end point” of struggles; instead, often the deeper political imaginary points to a community beyond legal citizenship and belonging (Celikates, 2022; Genova et al., 2022).

On the one hand, the demands vary – they are specific (against Residenzpflicht) or general (no borders), they harbor radical visions of other possible ways of political organization (King, 2016; Walia, 2022). An episode described by Picozza illustrates this point: When volunteers were starting to set up camp beds in a new accommodation facility for refugees in Hamburg, they were criticized by refugees who were refusing to enter the new space and were planning a hunger strike. A protesting refugee told a volunteer: “Now you’re decorating the Lager, while we want no Lager!” (Picozza, 2021: 54, italics in original). As Steinhilper shows, “‘[p]recarious migrants’ claims range from respect for human rights, freedom of movement, access to labor markets, a liberalized asylum process to critiques of deportation [and] migrant death at borders” (Steinhilper, 2021: 13).

On the other hand, there seems to be a shared perspective on border politics informed by the experience of mobility and domination by specific legal norms. This means that political representation has to move “beyond a political mobilisation on behalf of voiceless victims” (Perkowski, 2021: 160–161). Instead, refugees claim a status as political agents and as experts on refugeehood and migration: “Nobody is more expert than us. I lived it [my life on the move] for nine years, and somebody come in Europe and sit in Norwegian parliament and says that he knows better than me about migration … I don’t think so. I don’t think so. (MAL1.26, man from Ethiopia, Skype interview)” (Squire, Perkowski, Stevens & Vaughan-Williams, 2021: 75). As Celikates argues, taking the migrant standpoint into account involves “a kind of epistemic reversal: it is often precisely those who are subjected to social oppression and thereby epistemically marginalized who turn out to be epistemically privileged with regard to identifying crises for what they are” (Celikates, 2022: 100).

This lens of migrant perspectives and expertise is crucial when analyzing representative practices. The connection between descriptive and substantive dimensions of political representation is important. Demanding a seat at the table or a say in policymaking goes beyond the idea of including refugee interests in decision-making. Instead, activists call for descriptive self-representation of refugees. Even if we might say that there is a shared experience of mobility and migration, we should not underestimate the difference within the heterogeneous group of noncitizens. If we are interested in plural perspectives on border politics, gaining a seat at the table is insufficient. The variety of demands and positions needs to be reflected in the representative structures.

This is why some measures that are supposed to overcome the exclusion of refugees are instead criticized as window-dressing, tokenism, or cooptation of critical voices (Rother & Steinhilper, 2019). These terms describe variations of the claim that political inclusion might follow dubious intentions when decision-makers want to make their decisions more attractive (window-dressing) by including individual representatives based on specific criteria (tokenism), which can lead to a delegitimation of an institution that merely aims to pacify critical voices (cooptation). All cases describe strategies in which individual noncitizens are invited to participate, but this does not include “meaningful participation.” Not all modes of political inclusion help to overcome political domination; some remain merely symbolic.

In some cases then, it might even be preferable for certain groups to contest an institution instead of being included. This is why there are a number of counterspaces contesting official institutions for border politics. As Rother shows, many activist groups engage in an “inside–outside strategy,” participating in invited and invented spaces of inclusion – while others reject invited spaces, or even more established invented spaces of inclusion, leading to the creation of “counter-events to counter-events” (Rother, 2022: 103).

Having discussed different spaces, subjects, and demands, let us return to the overall question of how the constructive approach to political representation could enrich our critical analysis of border politics. It shows the plurality of representative practices by and for refugees. Border politics becomes a precarious laboratory for contestatory representative practices. Looking at these practices from the perspective of political representation, rather than voice or agency, highlights the institutional and structural aspects of these practices. We see institutional innovations such as refugee parliaments that do not only enable voice and agency, but also create new constituencies – who can in turn contest representative claims and challenge specific demands or events. Looking for the shape-shifting and constitutive dimensions of political representation shows the plurality of practices that exist simultaneously in border politics. The variety of subjects adapt their policy demands and political visions; they change when, where, and how they demand political change.

4 Is Everything Political Representation? The Democratic Legitimacy Problem

But isn’t there a risk in mapping the variety of ways in which refugees and migrants are already politically represented? The demand for political inclusion and democratic representation might lose its normative force if we argue that refugees and migrants are already politically represented in a number of ways. If we follow the proposal to distinguish representation’s descriptive and its normative dimensions, however, such a worry seems unwarranted. Instead, we have to reformulate the problem. The objection is rather that if we understand representation this broadly, everything and nothing is political representation – and that this is analytically and normatively problematic. Analytically, the problem is that there might be a number of practices that should be analyzed as something else – as voice or protest, for example – while, normatively, the problem is that it becomes more difficult to identify criteria for legitimate, desirable, or democratic political representation.

How do constructivists react to this challenge? According to Saward, political representation can be evaluated from two perspectives. We can focus on specific relationships between representatives and represented, asking whether there is a “sufficient degree of acceptance by the appropriate constituency” and whether the acceptance is open and uncoerced (Saward, 2014: 733). The second perspective is systemic. It looks at the interplay of political representation using “plurality, equal access, variability, and reflexivity” as normative criteria (Saward, 2014: 734). The latter criteria do not focus on individual relationships between the represented and their representatives but rather evaluate the representative system based on the “plurality of sites, moments, or opportunities for representative claim-making and reception” or the “extent of openness to different sorts of claims, by different sorts of claimant” (Saward, 2014: 734). According to Saward, a system of representation has a “greater prospect of democratic legitimation of a system of representation” if it includes many claimants and diverse representative claims (Saward, 2014: 734). As his model relies on the acceptance of representative claims by citizens, it is ultimately up to the constituency to decide whether representative claims are legitimate (Saward, 2014: 295 fn. 8). In a similar vein, Disch argues that we should not focus on the question of legitimacy but rather on hegemony (Disch, 2019: 179). For Disch, the questions associated with hegemony are: “What is this struggle to which I commit myself? Who or what is my opponent? Who might be an ally?” (Disch, 2019: 179). Both Saward and Disch commit to a “citizen standpoint” from which to evaluate representative practices.

From the perspective of reconstructive critical theory, however, this appears insufficient. We need to be able to criticize the legitimacy of existing border regimes and to propose changes. Several authors have argued that constructivist representation scholars risk remaining “unable to scrutinize and potentially challenge the background conditions […] preventing the inclusion and empowerment of many” (Brito Vieira, 2020: 987; Wolkenstein, 2021). We have to be clear about the background conditions for political representation of refugees: Refugees and noncitizens are structurally dominated and lack institutional avenues to shape and contest their political status (Owen, 2014). Migrant and refugee representation takes place within a space of precarity (Steinhilper, 2021) and structural domination. Within this context of political domination, refugees find a variety of ways to mobilize, make their claims, and create new constituencies. For critical theorists, however, it is crucial not to glorify refugee representation as this mode of shape-shifting might be a desperate move to use all remaining leeway for political change. On the other hand, the literature on the “autonomy of migration” reminds us that refugee agency is not only reactive but proactive. It is not merely a reaction to shifting borders, but sometimes the border shifts owing to refugee agency. We should neither glorify nor underestimate political agency in instances of structural domination.

Let me describe a strategy for reconstructive migration scholars to build on the insights of constructivist theories of political representation without accepting their normative assumptions. Reconstructive migration scholars should not exclusively focus on the most visible practices of emancipatory forms of agency. Instead, it might be helpful to follow those theorists who focus on silence and absence as important elements of political representation (Brito Vieira, 2020; Dovi, 2020). As Dovi argues, most contemporary theories of political representation “assume that increasing a group’s presence in representative processes always improves the quality of its representation” (Dovi, 2020: 559). Against this assumption, she argues that political science requires a more nuanced view of political absence to “understand and evaluate” political representation (Dovi, 2020: 559). For example, some groups “use their absences as a way to protest certain policies, protect the represented, and/or create more independent and autonomous political spaces” (Dovi, 2020: 559). A different approach treats “silence as the site of a potential presence” (Brito Vieira, 2020: 987). These are two strategies within representation theory to theorize absence and silence as politically relevant categories. For refugees in precarious contexts, silence and absence are sometimes the only attractive political strategies. Refugees refuse to participate, they stay silent. Refugee advocates recently staged a “walk-out” of a meeting with the US administration:

“We will not engage with the administration around conversations on how to make [this practice] a palatable form of inhumanity,” the advocates said. “Representing all five border welcoming regions and the suffering migrants who should be at this table, we now ask all our partners and colleagues to stand in solidarity with those we serve by respectfully walking out of this meeting.”

(Flores, 2021)

The distinction between strategic silence and involuntary exclusion is crucial when evaluating emancipatory potentials. To distinguish such instances requires a clear understanding of the political context and the background conditions for refugee agency. Here, political theorists can build on the empirical and especially ethnographic research in migration and border studies.

Conclusion

In this chapter, I have argued that democratic theory on border politics could benefit from recentering the concept of political representation. As the recent constructivist turn in representation theory has shown, political representation goes beyond a formal and static idea of “speaking for others.” Instead, constructivists see political representation as shape-shifting and constituency-mobilizing. I have tried to show how this perspective changes long-held assumptions about spaces, subjects, and demands articulated in representative practices by refugees. At the same time, the representative perspective loses its normative bite when it becomes unable to criticize the legitimacy of existing representative systems.

Does this mean that we should “take off our representation-colored glasses and look anew,” as Jennifer Rubinstein asks democratic theorists to do (Rubenstein, 2014: 230)? Clearly, not all political phenomena should be evaluated and analyzed as political representation – and we should not lose sight of alternative conceptual tools. But for the moment, I want to suggest that political theorists in the tradition of reconstructive migration theory can benefit from this perspective. The idea of a “citizen perspective” as a standpoint to evaluate representative practices is a case in point. From the perspective of reconstructive critical theory, this seems attractive – but insufficient. What would it mean to take citizen – and noncitizen perspectives – seriously in their plurality (Genova et al., 2022)?

What is important from the perspective of reconstructive critical theory is that border politics becomes more obscure for citizens and noncitizens. The plurality of tools and legal instruments and the reduced contestatory space from below turns the shifting border into a fundamental democratic problem. Constructivists challenge democratic theory’s assumptions about political representation, but the deficiencies of the “standard account” do not just arise for specific marginalized groups. The idea that representation is shape-shifting and constitutive of changing constituencies is not only relevant for refugees, but also changes our perspective on the ordinary representation of citizens.

16 Justice and Democracy in Migration A Demoi-cratic Bridge towards Just Migration Governance

Eva-Maria Schäfferle

Borders, territory, and rights are key components of our political vocabulary. We simply cannot develop any plausible account of contemporary states without them. In their modern understanding states are legal and political entities, which, as a mark of statehood, enjoy so-called territorial rights. Best understood as a bundle of rights, territorial rights contain three distinct, albeit interrelated, elements, namely (1) the right of territorial jurisdiction, (2) the right to control and use the territory’s resources, and (3) the right to control the movement of people and goods across the territory’s borders (Miller, 2012: 253; Song, 2018: 61).

Though deeply ingrained in modern political thinking, the idea of territorial rights is coming more and more under pressure. Contrary to the (real or imagined) beginnings of modernity, today’s political landscape is no longer marked by isolated and independent states but by high levels of transborder activity and movement. In such circumstances, territorial rights increasingly fail to fulfill their original function, which is to resolve potential conflicts between states by clearly separating their respective spheres of responsibility. Rather than guaranteeing international peace and stability, they have themselves given rise to some of the most urgent interstate problems we face today. The first right, by granting states absolute authority within their jurisdiction, leads to a problem of anarchy in the international arena. Protecting states’ ownership over all resources available in their territory, the second right, is at the root of today’s problem of global inequality. Finally, the third right, namely states’ unilateral control over their borders, creates the problem of migration, which, as with the other two problems, has reached unprecedented levels in recent years.

Even if, in normative political theory, each of these three problems has generated its own area of scholarship, all of them are approached in more or less the same way. Whether we talk about the problems of anarchy, global inequality, or migration, we primarily conceive of them as problems of (global) justice. To respond to the problem of anarchy, we ask: How should power be redistributed across different legal and political levels? Likewise, in reaction to the problem of global inequality, our question is: How should resources be redistributed across different states and regions? Finally, faced with growing numbers of migrants and refugees, we want to know: How should entry and membership rights be redistributed across different groups of people?

Focusing on the third problem of territoriality, namely that of migration, this chapter argues that justice theorizing alone is not enough. If we want to improve migrants’ legal situation in a durable and hence sustainable way, we must complement our reflections on just migration governance with reflections on democratic migration governance. Migration governance, according to this contribution’s central claim, cannot become more just without also becoming more democratic. Or, put differently, it can become more just only by becoming more democratic. To develop this argument, the chapter proceeds as follows: Based on a short discussion of Western states’ increasingly selective migration policies, Section 1 identifies two problems of justice-based accounts of migration: the problems of conditionality and externalization. Albeit formally bound by norms of justice, states have developed sophisticated mechanisms to circumvent their legal obligations, be this by restricting noncitizens’ access to their territory or by placing additional conditions on their access to rights. Seeking to overcome these problems, Section 2 argues that migration governance must become not only more just, but also more democratic. Migrants must acquire political rights and hence the power to hold states accountable for any rights violation they face. To give institutional expression to this claim, Section 3 develops a model of demoi-cratic migration governance: Migrants’ mobility and residence-related rights should become the object of reciprocal agreements that different governments, each representing their citizenries’ collective will, conclude with each other. Section 4 closes by responding to the central challenge that demoi-cratic migration governance, as a normative ideal, will face under nonideal conditions.

1 Migration as a Matter of Justice: Two Limits

Faced with growing numbers of migrants moving to Western states after the end of World War II, political theorists and philosophers started to draw attention to the injustices that characterized their treatment. Reminding liberal democracies of their commitment to respect the equal moral worth of all human beings, they criticized state practices which select migrants on morally arbitrary grounds or lead to permanent forms of second-class membership which durably preclude some groups of people from the rights enjoyed by others.¹

If we look at recent developments in Western states’ migration law, at first glance, it seems that liberal accounts of just migration governance have been successful in generating change and transformation. Starting in the 1970s, most migrant-receiving countries in the Global North have reformed their entry and membership rules to comply with liberal norms of equality and nondiscrimination (Joppke, 2008: 3–5; Morris, 2003: 93). Nevertheless, these ongoing liberal trends notwithstanding, as several chapters in this volume demonstrate, for many migrants access to physical and legal security has become more difficult than ever before. Admittedly, whether they are allowed to enter Western countries’ territories and claim the comparatively high level of legal protection that these states provide depends today no longer on their origin, but on individual and therefore prima facie morally unobjectionable conditions such as their personal skills and talents. However, despite abandoning overtly discriminatory selection criteria, such an individualistic approach can hardly be said to be more just. Not only does it disguise persisting structural inequalities but, in so doing, it also exacerbates the plight of those who belong to the most vulnerable groups in society. Lacking the financial, educational, or professional resources needed to compete in the “global race for talent” (Shachar, 2016), worse-off or low-skilled migrants live in a world that is not marked by increasingly open borders but by borders that are more firmly closed than ever before. This conclusion is even more true when one considers that the two most important noneconomic routes for migration, namely family reunification and asylum, have become the target of severe restrictions in recent years. Seeking to reduce the number of unwanted residents, more and more Western states have introduced additional conditions for family migrants, who must not only prove existing family ties, but also fulfill family-independent criteria such as financial self-sufficiency and familiarity with local norms and customs. Contrary to the right to family reunification, as an absolute right, the right to asylum has not become more conditional but more difficult to claim in practice. By outsourcing migration and border control to third countries or private organizations, liberal democracies around the world effectively prevent migrants from fulfilling the only condition for claiming asylum, which is to reach their geographic borders (Joppke, 2021: 83–87; Morris, 2003; Shachar, 2016: 186–189, 2020).

Referring to these changing legal cartographies of migration and mobility as the era of the Shifting Border, Ayelet Shachar (2020b: 9) writes: “[T]he unique and perplexing feature of this new landscape is that countries simultaneously engage in both opening and closing their borders, but do so selectively, indicating, quite decisively, whom they desire to admit […], while at the same time erecting higher and higher legal walls to block out those deemed unwanted or ‘too different.’” While the shifting-border paradigm focuses primarily on territorial borders, describing the increasingly selective admission policies that Western states employ, the same logic of “courting the top and fending-off the bottom” (Joppke, 2021: 90) also applies to their membership boundaries. Marked by a complex stratification of rights and legal statuses, as with territorial borders, they are neither open nor closed but are constantly shifting according to the qualities of those who ask for admission. Indeed, whereas economically valuable migrants find it increasingly easy to acquire permanent residence and ultimately citizenship, poor and unskilled applicants face substantial hurdles on their path to membership. To acquire long-term residence and the desired level of legal security that it provides, in more and more countries they must pass language, civic knowledge, and/or personal integrity tests, whose recent proliferation can be seen as evidence that they succeed in fulfilling their informal function, which is to reduce the number of undesirable migrants in our midst (Orgad, 2020: 351–352). How then should we respond to shifting borders and membership boundaries? Or, to recall the question raised at the outset of this volume: How can we prevent this erosion of rights-protection and the resulting transformation of migrants into rightless subjects?

As we have seen in this section, justice theorizing, if taken on its own, is not enough. Even if norms of justice and morality have induced Western democracies to refrain from overt forms of discrimination, they have given rise to new, more subtle systems of inequality that are difficult to capture by means of law. With regard to migration, two limits of justice theorizing can be discerned in the examples presented here: the problems of externalization and conditionality. Together they explain the growing discrepancy between legality and morality that characterizes the present era of shifting borders and membership boundaries. Although de jure extending an increasing set of rights to noncitizens, de facto liberal democracies employ a variety of technical and juridical inventions that help them evade their legal obligations either by preventing migrants from reaching their territory (problem of externalization) or by imposing additional conditions on their access to lawful residence and membership (problem of conditionality).

Of course, states’ often deliberate failure to comply with their demands cannot be attributed to theories of just migration governance themselves. However, even if it is undeniably true that they should and could do more to improve migrants’ plight, simply blaming states for their immoral behavior does not seem to be sufficient either. After all, states must respond not only to demands of justice, but also to a second type of demand, namely the demands of politics. Whereas the former urge them to adapt traditional understandings of borders, territory, and rights to the new realities of an increasingly mobile world, the latter encourage them to insist on their territorial rights as the best way to protect their internal prosperity and cohesion. As a result, state actors are caught in a tension between morality and national self-interest, between humanitarian obligations on the one hand and sovereignty assertions on the other. While only a balance between these conflicting goals promises to provide a sustainable response to the shifting-border paradigm, it is unlikely to occur by natural means. As long as states are accountable only to citizens, they have a strategic interest in favoring the needs of citizens over the needs of migrants and hence in evading those moral obligations that risk infringing their sovereignty and affluence.

2 Justice and Democracy: A Dialectical Relationship

Despite fulfilling important critical and motivational functions, most theories of just migration governance share a common deficit: Implicitly or explicitly, they are directed at national states and their governments. Depending on the electoral support of citizens, national authorities, though, have no intrinsic interest in protecting the rights of migrants, which as a result remain insecure. Who then should we entrust with the defense and protection of migrant rights?

A first element of response can be found in history. In his famous evolutionary theory of citizenship, T. H. Marshall describes citizenship as a progressing set of rights that gradually moved from the establishment of civil rights, to political and finally social rights (Marshall & Bottomore, 1992). Even if Marshall’s sequence, which closely mirrors the evolution of citizenship in Britain, has been criticized for lacking universal validity, the same cannot be said about its underlying logic. A dialectic between liberalization and democratization lies at the heart of all democratic membership regimes. To have lasting effect, any initial opening and hence extension of rights to formerly rightless persons must be followed by a moment of democratization. “[A] democracy,” writes James Bohman (2010: 49), “cannot become more just without also becoming more democratic, and vice versa.” Of course, as with moments of liberalization, moments of democratization can be subsumed under the same cumulative logic that underlies Marshall’s “tale of progress” (Anderson, Shutes, & Walker, 2014: 7) insofar as both developments expand the set of individual rights. In contrast to civil and social rights, political rights, though, are different. As the “right of rights” (Waldron, 1998), they grant their holders not only additional rights but also authority over them and hence the normative power to protect, alter, and enhance their rights.

If we apply these insights to the developments described in Section 1, the solution to the two problems of externalization and conditionality seems straightforward. Modern migration regimes’ recent liberalization must be followed by a period of democratization, which, extending political rights to noncitizens, grants them the power to influence and then later to defend the rights they hold vis-à-vis their host and destination countries. In other words, to overcome the pathologies that characterize modern migration governance, we must move away from state-centered views of justice and envision a new role for immigrants themselves. Rather than mere rights recipients they must be recognized as political actors who can hold states accountable for their plight, thereby providing them with a strategic interest to respect their rights and freedoms.²

Albeit compelling at first sight, proposals to enfranchise noncitizens are generally met with strong opposition, which comes not only from communitarian or liberal nationalist, but also from many democratic thinkers.³ It is, in their view, simply impossible to include noncitizens in decisions about their own rights without undermining the very basis of these rights, namely the political community itself. This is the lesson we can learn from recent debates on the so-called democratic boundary problem (Abizadeh, 2008: 45–46; Whelan, 1983). According to a widespread view, boundaries separate not only those who hold political power from those who do not, but also two different social groups with fundamentally opposed interests. Whereas citizens want to protect their community’s internal prosperity and cohesion and therefore support a regime of closed borders, noncitizens are interested in strengthening their individual rights and hence in open borders and membership boundaries. With any compromise between both groups being impossible, democratic decisions which include both citizens and noncitizens would necessarily amount to a zero-sum game, which, owing to their global majority position, noncitizens are destined to win. Hence, once empowered to codetermine their own rights, noncitizens would remove all legal distinctions which separate them from citizens and as a result abolish the membership boundaries on which modern polities are built. Are we then confronted with a choice between on the one side a world of open borders with no legal differences between citizens and migrants and on the other side a world in which migrants continue to be abject subjects whose rights, owing to the problems of conditionality and externalization, remain insecure?

The answer depends on whether one accepts the worldview that informs present debates on the boundary problem and, by extension, national thinking more broadly. As we have seen, this is the view of a world which is neatly divided into “us” and “them,” citizens and noncitizens, and hence two clearly separated groups with diametrically opposed interests. Such a view, though, finds less and less support in today’s political reality. Contrary to static conceptions of citizenship, identity, and belonging, the present era is characterized by unprecedented levels of transborder mobility and movement. Once limited to extraordinary circumstances, migration is today no longer an exception but the norm. Owing to new communication and transportation technologies, an internationalized economy, and the spread of English as a world language, migration has not only become a more and more realistic option for many people, but has also given rise to changing patterns of mobility and movement. Originally conceived as a one-directional movement, it has increasingly become circular, with people moving successively for a variety of different reasons such as education, employment, family, and lifestyle choices (Shaw, 2007: 2553). However, as soon as we acknowledge that many of us, taking advantage of these new opportunities, might – at least temporarily – be migrants in other lands, that as a result migrants are not exclusively the others but our own friends, family members, and ultimately we ourselves, it is difficult to uphold the view that citizens and noncitizens are clearly separated social groups. While both groups continue to exist, their internal composition is in constant flux, with people moving from one group to the other and therefore sharing the experience of both sides. In such a world, we are no longer either citizens or aliens, but in many cases assume both roles over the course of our lives. Ideally speaking, we are thus all potential migrants, who at some point might leave our home state to study, work, live, and love abroad.

Adopting such a dynamic view of boundaries, though, not only does justice to contemporary migration patterns, but also helps us envision new forms of democratic inclusion that do not run into the boundary problem. As soon as we stop thinking in binary terms and regard both citizens and aliens as potential migrants, democratic decision-making between these two groups becomes possible. As potential migrants we share, as we have seen, a double role. We are not only citizens but, at least potentially, also migrants and thus rights-givers and rights-takers at the same time. In our role as citizens, while we must grant rights to others, in our role as potential migrants we do or will claim rights from these others in return. Consequently, contrary to the assumption underlying the boundary problem, the relationship between citizens and noncitizens, rather than being asymmetrical, which would preclude any viable form of democratic decision-making, is marked by reciprocal needs and interests. Indeed, with our dual role as citizens and potential migrants comes necessarily a dual interest. Insofar as we are members of bounded political communities, we are concerned with their internal order and cohesion and therefore likely to defend a certain degree of closure and exclusion. Our simultaneous role as potential migrants, though, pulls in the other direction: To facilitate potential cross-border movements, we are interested in extending the rights that we enjoy abroad and hence in inclusive rather than exclusive border and membership regimes. The conflicting interests, which are often attributed to citizens and aliens respectively, are thus united in our own person, which makes it possible to find common ground with those we generally regard as others. Indeed, sharing a similar interest in porous borders and membership boundaries, that is boundaries which are neither completely open nor completely closed, we can take democratic decisions which, rather than amounting to a zero-sum game, satisfy the needs of both groups.

Of course, claiming that we are all potential migrants does not imply that we all have the same potential for becoming migrants and hence the same interest in porous borders and membership boundaries. Even in a world that is far more mobile, interconnected, and globalized than ours is today, a perfect symmetry of needs and interests seems impossible to achieve. However, neither is perfect symmetry a necessary condition for democracy nor does its absence correlate with a preference for closed or open borders. Insofar as we prefer to have more rather than fewer options, we have reasons to support a regime of porous borders, which, while protecting existing political communities, increases the opportunities that are available to us and the persons we love. Moreover, living in a world of increasingly porous borders changes not only our interests, but also our minds. By experiencing, either at home or abroad, new forms of solidarity and trust, we might find it easier to overcome abstract fears of otherness, which, more often than not, prevent us from listening to the other side.

Contrary to the conclusion that has been drawn from the boundary problem, democratic decision-making between citizens and aliens need not necessarily lead to a world of open borders and the disintegrating effects that many democratic thinkers rightly worry about. Rather than shielding modern border and membership regimes from noncitizens’ political influence, we must consequently think of the best institutional design which allows both groups, citizens and noncitizens, to face each other as potential migrants and hence express the dual interest that this role entails.

3 Migration as a Matter of Democracy: Demoi-cratic Migration Governance

As we have seen in Section 2, rather than being a logical consequence of migrants’ enfranchisement, the open-borders scenario results from insufficient institutional adaptation. If foreigners are included in other states’ national elections, both citizens and noncitizens are reduced to only one of their twofold roles and therefore prevented from expressing the common interests that they share as potential migrants.

Seeking to avoid the insufficiencies of the national framework, several political thinkers have argued in favor of global democracy (Agné, 2010; Goodin, 2007). Rather than being within the responsibility of national constituencies, noncitizens’ rights should be determined by an all-inclusive and hence global assembly, whose decisions would be binding for all nation states. Albeit transforming noncitizens from voiceless subjects into political actors, the arguments made in Section 2, though, speak against a move to the global level. As with national decision-making, global reforms fail to give expression to the dual role that citizens and noncitizens have. Elected by and therefore accountable to individual voters, a global assembly can represent only their personal interests but not the interests they have as members of bounded political communities. Consequently, even if global reforms promise to strengthen international migrants’ rights, they are ill equipped to protect the needs of existing political communities and might, similar to the open-borders scenario, therefore jeopardize the very institutions that have so far proven most effective in securing basic human liberties and freedoms. If, on the contrary, modern migration and membership regimes should respect both individual and communal interests, we need a double form of representation: Citizens and noncitizens must be represented as potential migrants, that is, in their dual role as members of national communities and as autonomous and therefore potentially mobile individual actors.

Meeting such a “dual standard of representativeness” (Bellamy, 2019: 97) is the central claim made by scholars who defend a demoi-cratic political order.⁴ Rather than situating democracy in a single demos, be it either of national or global scope, they call for democratic structures between existing demoi, who, to use Kalypso Nicolaïdis’ (2012: 254) words, should “govern together but not as one.” Applied to modern migration governance, theories of demoi-cratic decision-making would demand a two-step process of reform. In a first step, they would transfer migration-specific competencies from the national to the transnational level and hence from unilateral to reciprocal decision-making. Migrants’ mobility and residence-related rights would be removed from national authorities’ discretion and become the object of reciprocal agreements between states, which, once concluded, would have to be transposed into national law. Contrary to most existing multilateral procedures, demoi-cratic decision-making, though, cannot be reduced to an isolated instance of intergovernmental cooperation. Rather, we should think of it as an ongoing political process, which regularly unites all participating parties in order to assess, adapt, and, if necessary, renew their common legal framework. Consequently, even if, unlike global reforms, demoi-cratic migration governance does not require the creation of a new political authority above existing states, it requires a high degree of institutionalization at the interstate-level.

Nonetheless, intensifying interstate cooperation on migration is not enough to realize the ideal of demoi-cratic migration governance. To ensure that intergovernmentally established agreements reflect not only states’ collective but also their members’ individual interests, demoi-cratic reforms insist on a strong linkage between national and multinational decision-making (Bellamy, 2019: 4; 90–92; Cheneval, 2016: 50–52). Those state officials who negotiate reciprocally binding agreements with each other must do so as the authorized and accountable representatives of their peoples. Besides enhancing the institutional infrastructure between states, models of demoi-cratic migration governance are therefore equally concerned with strengthening inner-state mechanisms of authorization and control. To strike a balance between individual and communal interests, policies of migration and border control, which, in the present context of an increased securitization of migration, are more or less left at executive authorities’ discretion, must be brought under the influence of national citizenries and the wider democratic public. An expansion of interstate cooperation must consequently go hand in hand with a more prominent role of national parliaments, which, as representatives of their citizens’ individual interests, must have the power to influence the positions that will be defended in transnational negotiations and debates (Bellamy, 2019: 92–93, 125–126).

If both conditions are fulfilled, that is, if migrants’ transnational rights are determined in reciprocally binding processes of intergovernmental decision-making, which are subject to domestic parliaments’ influence and control, modern migration and membership regimes become not only more democratic, but also more just. Or, to resume the formulation used earlier, they become more just by becoming more democratic. Starting with the first claim, namely demoi-cratic migration governance’s democratizing effects, the difference to today’s legal landscape is obvious. Migrants would no longer be voiceless subjects but be recognized as political actors who are able to influence the rights that they hold vis-à-vis their host and destination countries. Of course, unlike other proposals for noncitizens’ enfranchisement, in the model defended here, migrants enjoy neither a special, that is group-specific, nor a direct form of representation. Rather, their needs and interests would be represented by their countries of origin and the national delegations they send to the interstate level. Insofar as they are entitled to participate in their home state’s general elections, they can influence its negotiation position and as a result the intergovernmental agreements that define their cross-border rights and freedoms. However, even if the demoi- rather than democratic mode of representation advocated here grants noncitizens only indirect influence over their rights, it has one central advantage: It gives institutional expression to the dual role and concomitant dual interest that they have as potential migrants. While, in their home state’s national parliament, they are represented as individual persons, their government’s delegation at interstate level represents their communal interests and hence the interests that they have as members of socially, culturally, and linguistically diverse political communities.

Insofar as demoi-cratic decision-making, owing to its inherently reciprocal logic, allows citizens and noncitizens, or, more precisely, the members of different demoi to face each other as potential migrants and therefore negotiate on the basis of similar rather than opposed interests, it overcomes the shortcomings of alternative proposals for noncitizen enfranchisement. Influenced by both individual and communal needs, demoi-cratic decisions promise to strike a balance between the two extremes of open and closed borders and hence strengthen migrants’ rights without undermining existing polities’ internal order and stability. However, pointing to demoi-cratic migration governance’s tendency to produce a system of porous borders and membership boundaries is not enough to substantiate the second claim made here, namely its advantage in terms of justice. After all, porous boundaries are not a unique feature of demoi-cratic decision-making but, as shown earlier, have been proposed by several liberal-minded philosophers and can, at least to some extent, already be observed in practice.⁵ To see why we have good grounds to prefer demoi-cratic migration governance not only from a democratic, but also from a moral point of view, we must recall the two limits of justice theorizing analyzed in the beginning. Even if de jure today’s borders and membership boundaries have become more porous than before, de facto states restrict migrants’ access to rights either by preventing them from reaching their territory (problem of externalization) or by placing additional conditions on the acquisition of lawful residence and membership (problem of conditionality).

Of course, depending on states’ voluntary compliance, demoi-cratic migration governance offers no absolute protection against immoral state action. However, owing to its reciprocal modus operandi, it reduces national governments’ incentives to circumvent their legal obligations towards migrants. Since the rights they owe to other member states’ nationals correspond to the rights that their own citizens can claim abroad, any violation of the common agreement is likely to have detrimental effects for their own citizenry as well. To see how demoi-cracy’s reciprocal logic mitigates the two limits of justice theorizing, consider first the problem of externalization. As soon as they submit to demoi-cratic decision-making, according to the model outlined here, states lose absolute authority over two sets of rights, namely the mobility and residence-related rights of international migrants. Decisions about whether newcomers are granted or refused entry would no longer be within their absolute authority but would have to respect the transnational rules that all member states jointly define. Of course, the best protection against strategies of externalization would be a system of free cross-border movement, which, though, is unlikely to gain universal support. What is likely to gain support, by contrast, is a stronger regulation of those legal tools that states employ to prevent outsiders from reaching their shores. By developing ever more sophisticated surveillance techniques, which track people both inside and outside their borders, states restrict not only the freedom of foreigners, but also that of their own citizens as well (Bohman, 2010: 49). Insofar as demoi-cratic migration governance removes questions of migration control from executive authorities’ discretion and brings them under the influence of national parliaments and their constituencies, it promises to mobilize resistance against illiberal externalization strategies, which, now coming from both sides of the border, states have good reasons to respect.

However, as we have seen earlier, states curtail migrants’ rights not only by increasingly inhumane policies of border securitization, but also by the introduction of additional naturalization conditions that some groups of immigrants will not be able to fulfill. Yet, having lost their authority not only over noncitizens’ mobility, but also over their residence-related rights, in a system of demoi-cratic migration governance national governments would no longer be in a position unilaterally to introduce new legal constraints and conditions. With such decisions falling within the joint responsibility of all member states, any government wishing to restrict migrants’ access to rights would be left with only two options. It would either have to obtain the consent of all other member states or alternatively withdraw from the joint agreement, thereby accepting the risk of being punished by its own citizens who, as with foreigners, would lose their transnational rights and freedoms.

4 Demoi-cratic Migration Governance in Practice: Objections

Demoi-cratic migration governance, so this chapter’s central claim, bridges the gap that moral accounts of migration are unable to overcome. By submitting migrants’ rights to democratic decision-making between different demoi, it not only contributes to their strengthening, but also protects them against policies of conditionality and externalization.

Nevertheless, albeit promising to overcome the limits of justice theorizing, demoi-cratic reform proposals face an important limitation: To fulfill the double requirement of both internal and external democratization, all participating parties must be committed to democratic principles in the first place – a condition which excludes nondemocratic regimes and their citizens from demoi-cratic migration governance’s scope (Cheneval, 2016: 26). To gain an idea of the consequences that this limitation has in practice, it is helpful to look at the EU, whose internal migration and membership regime, namely EU citizenship, roughly follows the demoi-cratic logic. Even if EU citizenship grants all member state nationals a comparatively large bundle of transnational rights, it has given rise, to use the words of Seyla Benhabib (2002: 458), to a “two-tiered status of foreignness,” which sharply distinguishes between internal migrants, that is EU citizens, and external migrants who, coming from non-EU states, enjoy a lower level of legal and social protection. Moreover, under nonideal circumstances, in which democratic principles fail to enjoy universal recognition, demoi-cratic reforms not only lead to inequalities and exclusions, but also provide them with a prima facie sound justification. Contrary to the discriminations created by national law, those resulting from demoi-cratic arrangements would no longer be based on arbitrary criteria such as people’s nationality but on the per se unobjectionable principle of reciprocity. In the hands of restrictive policymakers, demoi-cratic arguments could thus easily be used to reject any obligation to narrow the gap between internal and external immigrants. Since the latter, so the argument could go, are not part of the reciprocal agreement and therefore not committed to the duties it prescribes, they have no legitimate claim to benefit from its privileges either.

However, reducing the ideal of demoi-cratic migration governance to its reciprocal rationale or logic would betray its primary motivation, which is one of emancipation. Indeed, rather than being an end in itself, the norm of reciprocity was introduced to serve a more fundamental goal, namely that of improving the legal situation of international migrants. As we have seen, realizing this goal requires a twofold effort, to (1) give institutional expression to migrants’ political agency and hence grant them a say over their own rights, and (2) uphold the stability of existing polities, which have so far proven most effective in protecting individual rights. Compared with these overriding objectives, demoi-cracy’s reciprocal logic can claim only derivative value: It achieves the best balance between the conflicting demands of noncitizen agency and communal integrity.

Viewed from this perspective, demoi-cratically defined rights are more than mutual concessions between specific nation states. Rather, they are genuine migrant rights which reconcile the background conditions of migration, namely a world of bounded nation states, with the normative ideal of individual freedom and autonomy. Understood as such, though, that is as genuine migrant rights, national authorities have no principled reason to restrict them to specific groups of immigrants. Such restrictions are permissible only if an extension of equal rights to nonmember state nationals threatens the second value that demoi-cratic migration governance seeks to protect, namely that of communal stability and cohesion. Consequently, even if the ideal of demoi-cratic migration governance does not require strict equality between internal and external migrants, it requires that any form of inequality be justified to a high level by the member states. Accordingly, despite being limited to democratic states, demoi-cratic migration governance sets norms that reach beyond the limits of demoi-cratic associations. As we have seen in this section, it comes with both internal and external obligations. Internally, democratic states must submit their migration policies to joint decision-making and hence reform their domestic border and membership regimes according to commonly defined rules and standards. Externally, they must make efforts to equalize the treatment between internal and external migrants and publicly justify any deviation from this norm.

Conclusion

Starting from the assumption that modern migration governance can become more just only by becoming more democratic, this chapter has argued in favor of demoi-cratic decision-making. To improve migrants’ legal situation, national authorities must renounce absolute discretion over their rights, which should become the object of transnational agreements that different governments, each representing their citizenries’ collective will, conclude with each other. Of course, even if demoi-cratic reforms promise to strengthen international migrants’ rights, they neither provide an immediate solution to the problem of migration nor resolve all the various injustices to which it gives rise. Democratic and moral accounts of migration can consequently not replace but only complement each other. As such, though, that is as a complement to existing theories of just migration governance, models of demoi-cratic migration governance do not free national authorities from their existing moral responsibilities towards outsiders but merely add an additional obligation. As Ayelet Shachar demonstrates in her recent book (2020b), to tame the rights-infringing and dehumanizing effects of their increasingly shifting borders, states must extend their moral and legal obligations beyond their territories and hence protect the human rights of all immigrants, no matter whether they have actually reached their borders or have been stopped en route. In a similar vein, to overcome the limits of justice theorizing that this chapter sought to reveal, democratic states must extend processes of democratic decision-making beyond their jurisdictional confines to bring migration governance under the influence of all those whose rights and freedoms are at stake.