The State of Law’s Borders and the Law of States’ Borders

Abstract

Migration law asks three questions: Who gets in? On what terms? Who decides who gets in? In Canadian jurisprudence, the answers to these questions once depended on the interaction of domestic administrative case law with Canada’s international human rights obligations. With the advent of the Canadian Charter of Rights and Freedoms, a triangular relationship developed, and the answers are now caught in the messy nexus of three dyads: administrative law/international law, Charter/administrative law, and Charter/international law. Independently, each of these dyads has produced an intelligible, if problematic, set of legal conventions for adjudicating international human rights claims. However, when one attempts to conjoin the three dyads into one coherent legal order, fissures rise to the surface, and nowhere do the cracks appear more dramatically than in cases involving non-citizens. For example, problems arise regarding jurisdiction, deference, and the duty of fairness, which collectively illustrate the leakiness of borders between legal regimes. Judicial management of boundary crossings between legal regimes, like migration law, also asks three questions: what gets in? On what terms? And who decides? The author concludes that the boundaries between domains of law is no longer reducible ex ante to formal categories and rules, and that the confusion cannot be resolved by supplementing existing categories with new formal categories. Rather, the rules of admission are fluid, and vary in accordance with the character of the entity seeking admission as well as the relationship between the parties on both sides of the border. Border crossings produce rich new possibilities, hybridities and permutations unforeseen, as well as confusion and disorientation. In law as in life, we are still learning to live with the results.

Keywords: migration law, human rights, domain of law, rule of admission