What Does the Emerging International Law of Migration Mean for Sovereignty

Abstract

The emergence of an international law of migration has lent ballast to claims by philosophers, such as Benhabib, who contend that “since the UN Declaration of Human Rights in 1948, we have entered a phase in the evolution of global civil society, which is characterized by a transition from international to cosmopolitan norms of justice.” However, migrant rights are often hotly contested, not least by the states against whom they are asserted. At the very least, however, presumptions of absolute sovereign prerogative have been thrown into question. If national borders are far from open to migrants, one might be able to say that as a normative matter, at least, they are less presumptively, or more contestedly, closed.My purpose in this draft essay is not to mount a detailed doctrinal analysis of this emerging international law, but rather to survey the theoretical discourses of sovereignty that create the backdrop for current debates over migration law and policy. I conclude that neither liberal nor biopolitical discourses by themselves explain the warp and weave of this emerging body of law. Rather, a structural equivocation within international law encompasses opposing positions of realpolitik apology for sovereign power, on the one hand, and aspiration towards utopian universality, on the other. Moreover, a survey of the history of international law locates the bases for migrant rights (alongside other human rights claims) in natural law traditions that predate the rise of “plenary power” conceptions of sovereignty. Before we international lawyers congratulate ourselves regarding the progressive or progressionistic roots of international law, however, the colonial dimension of those natural law traditions should be clarified.Finally, I want to explore an ethics for migration law and policy that would extend beyond the constraints that, similarly to those described above for emerging law, also characterize current discourses of reform - made salient by the recent “comprehensive immigration reform” debates in the U.S. Congress - that is to say, beyond an apologetic pragmatics of population management on the one hand versus a utopian cosmopolitanism, on the other. Somewhat tentatively for the time being I am calling this an ethics of “new organicism.”