On The Morality and Legality of Borders: Asylum Seekers and Border Policies

Tally Kritzman-Amir, New York University

Abstract

The article examines the way in which states treat– and should treat – asylum seekers seeking to enter the country in an undocumented manner. Part I of the paper discusses in general terms whether states have a moral duty towards asylum seekers wishing to enter their borders. We argue that there is indeed such a duty, and discuss the source of this duty. From this duty, we believe, derives a moral duty to apply fair procedures at the border. Part II explains the legal norms imposing such a duty on states toward asylum seekers at their borders. We explain that the principle of non-rejection at the border derives from the prohibition on refoulement, and in some cases applies also to returns to third countries. We also argue that rejection at the border is only permissible if backed by a substantive examination of a person’s asylum application, and if that person has been provided with the opportunity to appeal against the rejection decision. Our legal analysis is based on norms of international (more specifically, human rights) law. Part III describes in detail a test case of the border policy of Israel, implemented on asylum seekers entering through the Egyptian border, and the elaborate procedures that have been developed under this policy. This includes an assessment of the Israeli procedure in the light of the conclusions of parts I and II. We conclude by suggesting that fair procedures must be applied at the border in the light of the moral and legal considerations.