The Legality of Border Walls under International Law

Abstract

This thesis evaluates the legality of border walls under public international law, focusing on four legal regimes: international refugee law, international human rights law, international indigenous law, and international environmental law. For illustration, the thesis assesses the compatibility of wall construction with non-refoulement (the fundamental principle of refugee law), arguing that barrier-building States are obliged to set up reasonably accessible points of entry along these structures to allow internationally protected individuals to seek refuge. In addition, the thesis studies the implications that the human rights to life and to be free from cruel, inhuman or degrading treatment have upon the design and location of border barriers, including a prohibition from incorporating lethal weaponry into these walls. The thesis also examines how international indigenous law requires barrier-building States to take into account the rights and interests of indigenous communities when fortifying their borders, in order to preserve their cultural and religious heritage. Furthermore, the thesis explains how international environmental norms require States to prevent significant environmental harms that may be caused by a wall’s fragmentation of ecosystems and wildlife migration routes. The thesis concludes with an exploration of what a novel conceptualisation of State sovereignty, understood as a responsibility for the care of humankind, could imply for the legality of border walls under international law.