Conclusions

Liberties are limited under liberal rule through ordinary practices, embedded in liberal techniques of governing and affirmed through the establishment of a legal order. They are inherent to liberal rule. This has been the key thesis of this book. The legal order established through the rule of law legitimizes the limitation of liberties. Liberal discourses that proclaim a distinction between liberal rule and illiberal rule, through the discourse of exception or recourse to a lawless outside the liberal state, and locate liberties inside liberal rule need to be questioned. Security practices and the limitation of liberties do not take place outside liberal rule. The rule of law creates a space of security, where policing can be enforced and liberties limited. These are the borders of liberal rule. This chapter presents an overview of the key research results and outlines how these reverse commonly held assumptions on limits to liberal rule. Border zones expose the limits of contemporary liberal democracies. They contradict the normative foundation of liberal democracies, their emphasis on fundamental rights and individual liberties against governmental power. Nonetheless, border zones have become a permanent part of liberal democracies and developed into a global norm. Liberal discourses have influenced the way border zones are perceived. Border zones have been commonly portrayed as outside the state, extra-territorial spaces or lawless spaces. The socio-legal analysis conducted for various border zones – on the territory, on the seas and in third countries – proves that border zones are legal constructs, part of the legal order of the liberal state. They are under the jurisdiction of the state, based upon its force of law. In border zones, liberties are legally restricted and policing powers legally enforced. The role of the rule of law is significant as it legalizes and to a certain extent legitimizes illiberal practices. Security practices become lawful and, hence, an acceptable way of managing borders. The problem inherent to border zones is precisely that liberties can be easily limited through legal means, potentially for any population, but especially for non-citizens. Practices at border zones are justified by reference to argument on the sovereign right of the state to control its borders, to ensure the security of its

borders and by the argument of illegality. Governments argue that legal protection should not be offered to those who are illegal and that an illegal non-citizen who violates the law for entry does not deserve the law’s protection. Within liberal states, usually security practices are counterbalanced through safeguards against policing powers, but the creation of a legal outside and/or the status of illegal limits/suspends access to the legal system and legal procedures. Border zones demonstrate that legal discrimination is an ongoing concern for marginalized populations and border zones demonstrate one of the current limits to equality under law. Liberal rule does not provide equal rights for all, but limits the scope of liberties through practices of legal borders. The government of populations called migrants develops its effectiveness, precisely by embedding the limitation of liberties within the legal framework. Migrants are not outside the law, but embedded and produced through it, similar to previous segregation and exclusion policies that provided a specific legal framework for particular populations. The argument of this book has been straightforward, namely that fundamental rights against policing powers need to apply non-discriminatorily in scope and population, that is wherever liberal rule and its policing forces are encountered. In an extension of this argument, the enforcement of liberal rule does not only take place when its policing forces are encountered directly, but liberal governments also carry responsibility when they delegate these responsibilities to third parties, whether humanitarian organizations, private corporations or other states. Five points summarize the main points of this research, and help to reverse commonly held assumptions on liberal rule and the limitation of liberties. First, on security. Security practices are ordinary practices of the liberal rule. Liberal discourses combined with the discourse of exception place securitization and the limitation of liberties outside liberal rule, as an exceptional situation, generated by exceptional law. These discourses conceal that securitization is produced through the rule of law and forms a permanent part of the legal infrastructure of the state. Hence, liberal rule always contains illiberal practices; securitization is inherent to the nature of any political rule, including liberal rule. Border zones are characterized by legal proliferation rather than being outside the law, by juridical complicity rather than executives acting on their own, international consensus rather than unilateral approaches by states. Border zones are constituted through unexceptional means, such as national and international law and police cooperation. Security here is hardly an exceptional practice, but a daily practice. The banality of establishing border zones demonstrates that liberties can be limited anywhere, anytime as long as national and/or international consensus exists. Second, on the rule of law. The rule of law provides the possibility for the protection as well as limitation of liberties. Starting from discourses of exception, extra-legality or an emphasis on executive powers, liberal

discourses insist on a return to the rule of law to protect liberties. They conceal that violence is inherent to the rule of law. The common functions of law, such as distinctions between legal identities and legal spaces, provide the possibility for enforcing policing powers and limiting liberties in border zones complemented by regulations and bilateral and multilateral agreements, enforced through the executive, legislative and the judiciary. The rule of law also accommodates certain legal practices that are against its normative ideal and especially treacherous for liberties, such as retrospective legislation, legalization of previous policing practices or administrative practices, privative clauses that limit access to the legal system, and framework laws that provide the state’s bureaucracies with substantial powers without effective counter-controls (see especially case studies on Australia and France). Further, law also governs third party conduct, whether individuals, organizations or companies, through criminalization and penalization. The legal tools used to limit liberties are rather mundane and common to all border zones. The border zone shows that there are daily possibilities for the construction of legal spaces that suppress fundamental rights and, thus, undermine the fundaments of liberal democracies. This explains also the ease at which such legal spaces, that limit liberties, can be built. Third, on legal borders. The liberal state is a legal entity and legal borders define the limits of liberties. Many discourses start from territorial borders to define the space of liberal rule; spaces outside the state’s territory are portrayed as foreign or international spaces. The image of territorial rule, embedded in various legislation and jurisprudence, seeks to limit the liberal state’s responsibility and impose limits to liberties that usually accompany political rule. International borders are portrayed as territorial borders – unitary, visible, fixed and perennial. This conceals the scope of liberal rule, its space of jurisdiction. Liberal rule is embedded within multiple legal borders, borders that do not correlate with a physical location, but are multiple and spatially and temporally liquid. Legal borders of policing and legal borders of liberties are only two hereof that have been explored to analyze the limitation of liberties. Legal borders are the product of daily negotiations amongst the executive, administrators, law enforcement, the courts and other states. They are in constant transformation, negotiation and contestation. The border technology is effective precisely because it is based upon a legal conception of the border, because it is established through the counter-position of physical and legal presence. The deliberate manipulation of legal spaces allows liberal states to produce border zones, where policing powers are not counter-balanced by individual liberties – whether by contracting rights in the waiting zones, expanding policing into the high seas and foreign waters or creating offshore spaces by delegation. This border technology allows the state to govern selective populations through a security regime, whilst the rest of the state can be governed by liberal practices. Each of the studies illustrates

the temporal and spatial liquidity of the border zone and its role in governing selective populations. As they are legally constituted, border zones can be established anywhere. Fourth, on liberties. In border zones, liberties are purposively limited. Many liberal discourses portray access to liberties in a binary format; either people have access to liberties or are denied access to law. Border zones demonstrate different levels of access to liberties, with two key criteria being the relation to territory and the distinction between direct and indirect rule, leading to commonly held distinctions between legal presence, territorial presence, jurisdictional presence and delegated jurisdictional presence. People in each of these spaces are vested with a different set of liberties, decreasing from legal presence on the territory to delegated jurisdictional presence. Legal presence on the territory entitles full access to fundamental rights; territorial presence without legal entry, found in territorial border zones such as the waiting zone, often offers a more limited version of rights; jurisdictional presence, that is being under the police authority of the liberal state but outside the state territory such as interdiction on the high seas, curtails liberties further; delegated jurisdictional presence, that is being placed in third countries such as offshore border zones, limits access to liberties most to the point of their denial. Complementary to legal spaces is the legal status of people. The border zones are a starting point for legal identification of people, but the space of the border zone is flexible and follows them as their legal status wherever they go. With this construction, fundamental rights still apply to all within the state, but certain population groups can never reach the state, but always remain within the border zone. Liberal states do not have one homogeneous legal space, but multiple legal spaces. Fifth, on suspension of controls. For the limitation of liberties, two sets of ordinary controls are limited or suspended: within the government and by third parties of the government. The limitation of liberties is often based upon either an explicit agreement amongst the executive, legislative and judiciary by supporting each other’s démarches or an implicit agreement by withdrawing from the protection of liberties by exercising judicial selfrestraint or providing a legislative blank check. The failure of the conventional system of checks and balances can be attributed partly to a common national discourse on security and partly to a deliberate process of excluding and punishing third parties – whether human rights organization, media or individuals – who seek to contest these policies. Third party access to border zones is limited, whether of independent humanitarian organization, advocates, media or lawyers. This includes the denial of access to border zones, to people held in detention and the deliberate management of limited information. The border zone is primarily governed through security practices. This extends to security agencies (i.e. police, military and gendarmerie), security technologies and procedures. These practices are supplemented through practices of penalization for individuals

and private companies to enforce security practices, complemented by practices of responsibilization and governmentality. Security practices hinder possibilities for public visibility and public uproar. For the French waiting zone the struggle for access took more than a decade, and still is ongoing; for vessels on the seas it has been an ongoing problem and possibilities of control are still largely missing; and offshore border zones are precisely a means of taking people out of visibility and control, amongst others through the imposition of visa policies. Approaches needed to counter this government of invisibility are primarily the need for legal access to all spaces of policing – without temporary or spatial limitations. Sixth, on humanitarianism. The distinction between protection and legal protection is crucial. The protection of excluded and securitized populations is often seen as a task for humanitarian organizations. Rather than providing a solution, this can have the counter-effect of affirming practices of legal exclusion. Humanitarian organizations have an important function in the border zones in extending basic welfare and relief, which whilst necessary, are also are an extension of the government’s work. By maintaining and governing border zones, they can be accused of allowing implicitly the government to withdraw legal rights. Many of the contestations of humanitarian organizations are limited to rights of access to the border zones, and being allowed to implement a proper functioning of the humanitarian mission, according to the specific organizational goals and objectives, as they need state cooperation to operate. They cannot be neutral actors, but are implicated in the power struggles. Humanitarianism can become a technique for the government to avoid legal responsibility by delegating responsibility (Duffield 2004; Campbell 1998a; Bigo 2002; Verdirame and Harrell-Bond 2005; Agier 2002b). Humanitarian and international organizations can become forced or voluntary actors in the limitation of liberties. Further, international and humanitarian organizations that govern the lives of these populations are insufficiently legally and politically accountable. They do not offer legal rights and appeals, but are based upon an administrative top-down system without the possibility of those protected to appeal against their policies (Verdirame and Harrell-Bond 2005). As Verdirame and Harrell-Bond point out

International organizations, NGOs, donors, and humanitarian agencies generally exercise great power over the lives of refugees. At the same time they are subjected to only minimal levels of accountability, either legal or political. In general terms it is very rare for them to have to submit to the due process of law in national or international courts.