Abstract
This article argues that power struggles between judiciaries and executives are fuelled by tensions of securitisation, border control and human rights over the issue of irregular migration. The article juxtaposes three paradigm court cases to render the argument concrete, focusing on two Australian High Court decisions (M70 v Minister for Immigration and Citizenship and CPCF v. Minister for Immigration and Border Protection & Anor) and one decision from the European Court of Human Rights (Hirsi Jamaa and Others v. Italy). An examination of these cases reveals each step of this cycle: the executive attempts to produce a buffer to avoid or minimise migrants’ protections and judicial review, yet such manoeuvring is countered by the judges. Following this, new steps of the cycle occur: governments display disappointment to courts’ interventions in an effort to discredit the exercise of judicial power while the judiciaries maintain the focus on the rule of law. And so the cycle continues. The key argument of this paper rests on the paradox resulting from the executive’s attempts to curb judicial intervention, because such attempts actually empower judiciaries. Comparing different jurisdictions highlights how this cyclical power struggle is a defining element between these two arms of power across distinct legal-geographical boundaries. By tracing this development in Australia and in Europe, this article demonstrates that the argument has global significance.
Highlights
The reconfiguration of executive powers in the area of border control and securitisation has been a central theme discussed in recent literature on mobility and border crossing
While the judges were considering the CPCF case, the Australian government passed a number of amendments to the Migration Act and to the Maritime Powers Act in December 2014 to allow for the removal from high seas of unauthorised migrants without breaking national laws
Concluding remarks: Sovereign developments There is no doubt that the contemporary sovereign state has been caught in the dilemma of reconciling human rights commitments with desire to maintain postcolonial prerogatives to decide who can enter the receiving society (Marmo & Smith, 2012). This has led to an increased emphasis on national security responses with borders being increasingly securitised and militarised (Michalowski, 2007). We have illuminated this by focusing on the continuities between the developments in M70, Hirsi and CPCF to show how the live issue of irregular migration is contracting and expanding judicial and executive power in the realm of migration politics
Summary
The reconfiguration of executive powers in the area of border control and securitisation has been a central theme discussed in recent literature on mobility and border crossing (among others, Aas & Bosworth, 2013; Zedner, 2013; Mitsilegas, 2015a). Further counteracting the executive’s expansion of power through these border practices is the judiciary, which claims a rule-of-law stand on these matters the effect of which is to protect the migrants’ eroded human rights.
Sign-in/Register to view highlights & summary Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
