Travel Plans: Border Crossings and the Rights of Transnational Migrants

Abstract

The paper analyses three responses to the transnational migrant that characterize some of the contemporary legal interventions. The first response is reinforcing difference through categories such as gender and race, which regard these traits as immutable and unalterable and subject them to subordinating and paternalistic legal regulations. The second response involves the assimilation of the Other, which forces conformity to cultural and social norms partly through the performance of a cultural strip. Finally, there is the perception of the transnational migrant as a threat - a dangerous and contaminating force - to be excluded either through incarceration or elimination. These three approaches are reflected in the three situations that I set out in this Article.

First, I briefly examine how difference is reinforced in my discussion of the legal regulation of women who migrate for work, including sex work. Second, I examine the assimilationist move in the context of the legal responses to transnational migrants in countries that have adopted new emotional, cultural, and citizenship criteria to determine eligibility for citizenship and immigrant status. I discuss the recent initiatives in the U.K. and how these expose a neo-colonial anxiety about the Other and a desire to prevent the erosion of the social and cultural cohesion on which such societies are ostensibly built. In the third example, I examine how the global response to terrorism in and through the War on Terror, which promotes fear of the Other, has impacted Australia's legal response to refugees and asylum-seekers fleeing persecution and conflict.

The diverse responses to the transnational migrant subject are not clearcut and distinct measures: they frequently overlap. These subjects are at times represented as victims and at times as perpetrators capable of the most terrifying violence. The common element in the examples I discuss is the attempt to examine and respond to border crossings by transnational subjects along the rigid binaries of us and them, and domination and subordination. These binaries undermine the human rights of the transnational migrant subjectand fail to address the complex, fragmented, and blurred realities of our transnational world.

Keywords: Transnational migrants, assimilation, difference, the 'Other', natural, cultural 'Other', human rights, migration, cross-border movements, trafficking, immigration, terrorism, dangerous, civilization, uncivilized, barbaric, passive, victim

JEL Classification: K33