Migration As Decolonization
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Stanford Law Review Volume 71 June 2019 ARTICLE Migration as Decolonization E. Tendayi Achiume* Abstract. 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 toward 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 nonnationals, 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 typically beyond them. Whereas international refugee law and international human rights law impose restrictions on states’ right to exclude nonnationals 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 assertion of a largely unfettered right to exclude economic migrants. * Assistant Professor of Law, UCLA School of Law. I would like to thank the following individuals for their valuable insights on earlier drafts: Amna Akbar, José Alvarez, Asli Bâli, Laurie Benton, Gabriella Blum, Devon Carbado, Justin Desautels-Stein, Laurel Fletcher, Gabriel Greenberg, Oona Hathaway, Loren Landau, Itamar Mann, Emmanuel Mauleón, Jon Michaels, Saira Mohamed, Hiroshi Motomura, Sam Moyn, K-Sue Park, Matiangai Sirleaf, and Olúfẹ́mi O. Táíwò. Just as instrumental were participants in the following workshops: the American Society of International Law’s Migration Law Interest Group Bellagio Workshop (especially Jaya Ramji-Nogales and Peter Spiro for creating an intellectual environment conducive to radical reimagining), the Berkeley International and Comparative Law Colloquium, the Duke and Stanford Culp Colloquium, the Southern California International Law Scholars Workshop, the UCLA Political Sociology and the Global South Working Group, the UCLA Law School Summer Faculty Colloquium, the UCLA Law School Junior Faculty Colloquium, the Spring 2018 UCLA Advanced Critical Race Theory Seminar, the Vanderbilt International Legal Studies Program Works-in-Progress Roundtable, the Women in International Law Workshop, and the Yale-Stanford-Harvard Junior Faculty Forum. I thank the following individuals for outstanding research assistance and fruitful intellectual provocation: Rebecca Fordon, Erin French, Zachary Heinselman, Marc Jacome, Kabita Parajuli, and the stellar UCLA Law reference librarian team. And finally, I am grateful to the Hellman Fellows Fund at UCLA for its research support. All mistakes are my own. 1509 Migration as Decolonization 71 STAN. L. REV. 1509 (2019) 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 them. European colonialism entailed the emigration of tens of millions of Europeans and the flow of natural and human resources across the globe, for the benefit of Europe and Europeans. This Article details how global interconnection and political subordination, initiated over the course of this history, generate 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 treats economic migrants as political agents exercising equality rights when they engage in “decolonial” migration. 1510 Migration as Decolonization 71 STAN. L. REV. 1509 (2019) Table of Contents Introduction .......................................................................................................................................................... 1512 I. The Territorial Sovereign Nation-State and Its Right to Exclude Political Strangers ....................................................................................................................................................... 1523 A. The Sovereign Nation-State and Its Right to Exclude ............................................. 1523 B. The Right to Exclude in Practice ......................................................................................... 1529 C. Political Stranger Exceptionalism ....................................................................................... 1531 II. What Political Strangers? ................................................................................................................... 1533 A. Colonial Imperialism .................................................................................................................. 1533 B. Neocolonial Imperialism .......................................................................................................... 1539 III. Revisiting the Right to Exclude ...................................................................................................... 1547 A. De Facto Co-Sovereigns and the Right to Exclude .................................................... 1547 B. The Right to Admission and Inclusion: Migration as Decolonization ........... 1551 C. Rethinking Sovereignty, Self-Determination, and Decolonization ................ 1566 Conclusion ............................................................................................................................................................. 1573 1511 Migration as Decolonization 71 STAN. L. REV. 1509 (2019) Introduction The term “economic migrant” has become a moniker for a category of international migrant that national populations across the world view generally with suspicion, occasionally with pity, and increasingly with hostility.1 Europe’s response to African migrants offers an example. Between 2014 and 2018, over 1.8 million refugees and migrants risked their lives in journeys across the Mediterranean Sea attempting to reach Europe, and at least 17,000 of them paid with their lives.2 The response of European states, especially to those international migrants falling outside of the “refugee” definition,3 has been a righteous assertion of their sovereign right to exclude non-nationals. The June 2018 Aquarius search-and-rescue sea mission illustrates this phenomenon. The Aquarius—jointly operated by two international nongovernmental organizations—rescued 629 African refugees and migrants off the coast of Libya.4 It was denied permission to dock by Italy and Malta, the two closest countries.5 The Italian Interior Minister, whose party’s successful election platform was strongly anti-immigrant (and even xenophobic),6 defended his country’s decision as a justified response to 1. Anti-immigrant, and even xenophobic, rhetoric and policy are again commonplace in the United States. See, e.g., Alvaro Huerta, Policy Brief, The “War on Immigrants”: Policies in the Trump Era, MIGRATION & CITIZENSHIP (Organized Section on Migration & Citizenship, Am. Political Sci. Ass’n, Wash., D.C.), Summer 2017, at 57, 57-60, https://perma.cc/UPY3-3M9W; Khaled A. Beydoun, Opinion, The Cost of Xenophobia in Trump’s America, AL JAZEERA (Aug. 3, 2018), https://perma.cc/BC5B-9F7E. For a summary of the long history of xenophobic nativism in the United States, see Kevin R. Johnson, Race, the Immigration Laws, and Domestic Race Relations: A “Magic Mirror” into the Heart of Darkness, 73 IND. L.J. 1111, 1119-47 (1998); and Teresa A. Miller, Blurring the Boundaries Between Immigration and Crime Control After September 11th, 25 B.C. THIRD WORLD L.J. 81, 83-95 (2005). 2. See Mediterranean Situation, UNHCR OPERATIONAL PORTAL, https://perma.cc/3BKD -J7BU (archived Apr. 21, 2019); see also Latest Global Figures, MISSING MIGRANTS PROJECT, https://perma.cc/C86M-TPGC (last updated Apr. 18, 2019). 3. Under international law, a “refugee” is a person who is outside her country of nationality owing to a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and who, due to that fear, will not avail herself of her country’s protection. See Convention Relating to the Status of Refugees art. 1, ¶ A(2), July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 [hereinafter 1951 Refugee Convention]. 4. See Aryn Baker, How One Migrant Ship Became a Symptom of a Sick Europe, TIME (June 12, 2018), https://perma.cc/JHX7-3NSF. 5. See id. 6. See Loes Witschge, What’s Next for Italy’s Immigrants Under the Populist Government?, AL JAZEERA (June 3, 2018), https://perma.cc/L3BH-GVCV; see also Aaron Robertson, Argument, Xenophobia Meets Reality in Italy, FOREIGN POL’Y (June 13, 2018, 9:18 AM), https://perma.cc/R8YP-A3UG. 1512 Migration as Decolonization 71 STAN. L. REV. 1509 (2019) illegal immigration.7 The French President publicly criticized Italy’s rejection of the Aquarius refugees and migrants,8 but this criticism belied the similarly aggressive anti-immigrant policies which even more centrist European nations