Migration As Decolonization
71 Stanford Law Review (2019, Forthcoming)
78 Pages Posted: 7 Feb 2019
Date Written: February 7, 2019
International migration is a defining problem of our time, and central to this problem are the ethical intuitions that dominate thinking on migration and its governance. This Article challenges existing approaches to one particularly contentious form of international migration, as an important first step towards a novel and more ethical way of approaching problems of the movement of people across national borders.
The prevailing doctrine of state sovereignty under international law today is that it entails the right to exclude non-nationals, with only limited exceptions. Whatever the scope of these exceptions, so-called economic migrants—those whose movement is motivated primarily by a desire for a better life—are beyond them. Whereas international refugee law and international human rights law impose restrictions on states’ right to exclude non-nationals whose lives are endangered by the risk of certain forms of persecution in their countries of origin, no similar protections exist for economic migrants. International legal theorists have not fundamentally challenged this formulation of state sovereignty, which justifies the largely unfettered right to exclude economic migrants.
This Article looks to the history and legacy of the European colonial project to challenge this status quo. It argues for a different theory of sovereignty that makes clear why, in fact, economic migrants of a certain kind have compelling claims to national admission and inclusion in countries that today unethically insist on a right to exclude these migrants. The European colonial project involved the out-migration of at least 62 million Europeans to colonies across the world between the nineteenth and the first half of the twentieth century alone. It also involved movement in the reverse direction of human and natural resources, overwhelmingly for the benefit of Europe and Europeans. This Article details how global interconnection and political subordination initiated over the course of this history generates a theory of sovereignty that obligates former colonial powers to open their borders to former colonial subjects. Insofar as certain forms of international migration today are responsive to political subordination rooted in colonial and neocolonial structures, a different conceptualization of such migration is necessary, one that engages economic migrants as political agents exercising equality rights when they engage in “de-colonial” migration.
Keywords: international migration, European colonial project, international refugee law, international human rights
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