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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.


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7 Sep 2022
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  • Subject
    • Human Rights Law

    • Immigration Law

  • Journal title
    • Beyond Borders: The Human Rights of Non-Citizens at Home and Abroad

  • Pagination
    • 126-150

  • Date submitted

    7 September 2022

  • License
  • Additional information
    • Suggested Citation:

      Daniel Kanstroom (2021). '“Either I Close My Eyes or I Don’t” The Evolution of Rights in Encounters between Sovereign Power and “Rightless” Migrants.' In Molly Katrina Land, Kathryn Rae Libal and Jillian Robin Chambers (Eds.), Beyond Borders: The Human Rights of Non-Citizens at Home and Abroad (pp. 126-150). Cambridge University Press.