68 Hastings L.J. 609 (2016-2017)
Migration Emergencies

handle is hein.journals/hastlj68 and id is 642 raw text is: 













Migration Emergencies


                               JAYA  RAMJI-NOGALES*


Migration  emergencies  are a commonplace   feature in contemporary   headlines. Pundits
offer a variety of causes provoking these emergencies. Some  highlight the deadly risks of
these journeys for the migrants. Many  more   express alarm at the potential threats these
mass  influxes pose to their destination countries. But few question whether these migrant
flows  are, as commonly   portrayed,  unexpected  and  unpredictable.  This Article asks
whether  these migration emergencies  are surprising events or the logical and foreseeable
outcomes   of the structural failures of the global  migration  system. In particular, it
interrogates the architecture of international migration  law, arguing  that the current
framework   is unsustainable in today's globalized world.

This is a story about the legal construction of crisis. Several literatures offer compelling
insights into the construction of migration crises, but fail to explore the crucial role of
international migration law. Scholars of forced migration view the legal framework as an
inadequate  response to crises but not as a root cause. Others have highlighted the role that
crises play in the development  of international law, demonstratring  how  crises impact
law, but failing to examine how law helps to construct those crises.

This  Article begins to unpack  the role of international migration  law in constructing
migration crises. International migration law, because it is codified in written instruments
and  nearly impossible to alter, entrenches sociocultural frames that might otherwise be
substantially more flexible. International law has constructed a  deeply path-dependent
approach  to international migration that not only obscures  systemic inequality but also
consumes   alternate conceptions  of morality. In response  to this critique, this Article
suggests a new approach  to global migration law that aims to govern migrant flows more
effectively. In short, it aims to establish international migration law as a separate subfield
of international law rather than the afterthought that it currently represents.




      * I. Herman Stern Professor of Law and Co-Director, Institute for International Law and Public
Policy, Temple University, Beasley School of Law. With many thanks to those who provided generous
feedback on this project at various stages: Diane Marie Amann, Ash Bali, Angela Banks, Jane Baron, Dan
Bodansky, Pam Bookman, Janie Chuang, Harlan Cohen, Audrey Comstock, Margaret deGuzman, Jean
Galbraith, Daniel Kelemen, Elizabeth Keyes, Itamar Mann, Fernanda Nicola, Stephen Park, Peter Spiro,
Chantal Thomas, Ralph Wilde, and David Zaring, as well as participants in the American Society of
International Law's 2015 Mid-Year Research Forum, the Arizona State University International Law
Colloquium, the Case Western Faculty Colloquium, the Drexel Faculty Colloquium, the University of
Georgia Faculty Colloquium, the St. John's International Law Colloquium, and the Washington and Lee
Faculty Colloquium. Many thanks to Alicia Anguiano, Rhiannon DiClemente, Karen Hoffmann, Nour
Kawatani, Andrea Saylor, and Megan Stupak for terrific research assistance. Many thanks as always to
Josette Finnegan for her good-natured assistance with numerous administrative tasks, without which this
project could not have been completed.


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