Document Type

Article

Publication Date

8-27-2021

Abstract

Harsh migration enforcement has sparked courageous humanitarian reactions and hundreds of criminal prosecutions. Such prosecutions ostensibly seek to vindicate the power of governments to control nation-state borders. But they seem, ironically, to have achieved the opposite: They have vindicated, reinvigorated – and even inspired new forms of – basic human rights. This chapter examines three cases: Cédric Herrou, a French olive farmer who was criminally tried for assisting unauthorized migrants in France; German “rescue” ship captains, Carola Rackete and Pia Klemp, prosecuted for rescuing distressed migrants at sea and bringing them to Lampedusa, Italy; and Scott Warren, prosecuted after allegedly providing food, water, beds, and clean clothes to undocumented immigrants in Arizona. The verdict in Herrou’s case was overturned because fraternity was recognized as a constitutional value. Captains Klemp and Rackete appealed to the ideal of “solidarity.” Warren’s attorney intoned to the jury, “Being a good Samaritan is not against the law ….” These encounters implicate deep questions of constitutional legitimacy and migrant rights, involving the presence of migrants with definable – if not yet enforceable – rights claims. They illustrate a dynamic process of mediating tensions between “sovereign” power and human rights, an essential revitalizing project for constitutional democracy and human rights law.

Share

COinS