What Does the Emerging International Law of Migration Mean for Sovereignty
![handle is hein.journals/meljil14 and id is 402 raw text is: WHAT DOES THE EMERGING INTERNATIONAL LAW OF
MIGRATION MEAN FOR SOVEREIGNTY?
CHANTAL THOMAS*
The emergence of an international law of migration has lent ballast to claims by philosophers
who contend that 'since the [United Nations Universal] 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,
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. Mypurpose in this article 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 characterise current discourses of reform made salient by the recent
'comprehensive immigration reform' debates in the United States
Congress that is to say, beyond an apologetic pragmatics ofpopulation 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'.
CONTENTS
I In tro d u c tio n .......................................................................................................... 3 9 3
A An Emerging Body of International Law ................................................ 401
II Discourses of Sovereignty: Liberalism and Its Limits .......................................... 410
A D ebates in Political Philosophy ................................................................ 4 10
1 First Wave: Liberalism versus Communitarianism ...................... 410
2 Second W ave: Cosm opolitanism ................................................. 413
3 Third W ave: Conditions of Sovereignty ...................................... 414
B The (Security) State and the Limitations of Liberalism ............................ 420
1 The Desire for Physical Security and Political Stability .............. 421
2 The Analytics of Power and the Rise of Critical Theory .............. 423
C B iopow er and Its O bservers ..................................................................... 424
III A Critical Approach to the International Law of Migration ................................. 432
A B iopow er in International Law ................................................................ 432
B The Instabilities of International Legal Discourse .................................... 435
C H istoricising International Law ............................................................... 438
* Professor of Law, Cornell Law School. Earlier versions of this work were presented at:
Cornell Law School's Law and Humanities Workshop; Cornell' University's Institute for
Comparative Modernities; University of Buffalo's Baldy Centre for Law and Social Policy;
and the 'Illegality Regimes' conference co-sponsored by the University of Amsterdam and
the Vrije Unversitat Amsterdam. My earnest thanks to the participants of these sessions for
their invaluable comments.](ViewImageLocal?handle=hein.journals/meljil14&div=17&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
What Does the Emerging International Law of Migration Mean for Sovereignty
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most