Maps, Migrants, Markets: International Economic Law and the Structural Violence of Borders

Abstract

International migration is a defining issue of our time, and central to this problem are the causal stories and ethical intuitions that underpin its governance. This dissertation challenges existing approaches to one particularly contentious form of border-crossing – that of the unauthorized “economic migrant” – as a step toward a more just and sustainable regulatory framework. By connecting this figure to systemic questions of racial justice and global political economy, I seek to shift some of the fundamental commitments at the core of the international law, norms, and discourse around irregular migration. The term “economic migrant” is typically reserved for individuals whose movement is understood to be a matter of choice, defined by a fair degree of political agency, and motivated primarily by the desire for a better life. In conventional accounts, the territorial admission of those who move in search of economic opportunity is understood to fall within the full discretion of the receiving state. International law does little to disrupt this understanding and, indeed, the prevailing doctrine of state sovereignty ratifies it. Within the liberal-democratic tradition, the territorial nation-state is the primary vehicle for the collective self-determination of peoples. The international law of sovereignty has evolved to characterize control over national borders as central to achieving this self-determination. International legal doctrine, in other words, treats the national right to exclude foreigners as a necessary means of protecting the territorial and political integrity of the nation-state and therefore as a fundamental incident of sovereignty. Positive law and legal theory come together to reinforce the normativity of national territorial borders and thereby normalize the exclusion of economic migrants. As the consummate political strangers to these sovereign bodies, they have no cognizable claims to shaping the trajectory of the nation-state in question and certainly no say as to the terms of their admission. Although a number of progressive scholars have argued for a more cosmopolitan approach to borders, few have fundamentally challenged this territorial formulation of sovereignty. Even among humanitarians working against ethno-nationalist border agendas, there is a far-reaching but rarely critiqued consensus that states maintain their territorial prerogative when it comes to economic migrants. Migration governance is premised upon an atomistic conception of the nation-state, proceeding from the image of an international order comprised of autonomous and equal sovereigns, each with the right to govern its borders unilaterally unless they consent to alternative arrangements. By drawing on literary “case studies,” my dissertation seeks to unsettle this hegemonic account. Applying a postcolonial lens, it aims to supplant the legal fiction of formally independent nation-states with the more empirically rooted claim of imperial interconnection. Although formal decolonization has occurred in most of the world, political independence has done little to disrupt historical relations of exploitation and subordination. Some nation-states continue to benefit structurally from transnational interconnection at the expense of others, and benefit allocation is a function of (neo)colonial logics. Accordingly, the First and Third Worlds remain bound to each other in informal empire. While such an analytical claim is well-established in an expansive interdisciplinary literature, legal scholarship has insufficiently grappled with its implications for migration law and the theory of sovereign territoriality that structures it. My thesis posits that this social fact of interconnection should serve as the ethical baseline from which migration law is assessed and negotiated. In particular, I argue that there is a link between increased irregular migration over the past few decades and a broader international order that has sought increasing economic integration. I examine both the explanatory and the normative implications of this relationship. Despite the systematic liberalization of flows in goods and capital across borders, few equivalents exist for governing flows of people. This asymmetry in policies toward globalization is mirrored by a lack of focus on addressing the effect of international economic shocks on domestic employment. Multilateral agreements relating to international trade, investment, and finance have generated the effects of dislocation and displacement that incentivize out-migration from poor countries to wealthier ones, whether authorized or not. At the same time, these instruments have prevented the establishment of measures necessary to support domestic growth and stability. As a result, international economic law reproduces economic hierarchy along the same geopolitical and racial lines that characterized the colonial project. In so doing, it generates the material, structural drivers of irregular migration. Although facially neutral, sovereignty doctrine justifies the presumptive exclusion of non-nationals against this backdrop of inequality and therefore protects and reinforces it. From this perspective, the pursuit of movement across borders by people of the Global South toward the Global North represents an equitable claim in addition to a redistributive one. Existing approaches to migration law tend to portray unauthorized economic migrants as morally culpable by virtue of their voluntary transgression of national immigration laws. Contrary to this conventional narrative, I argue that their movement should be reconceptualized as a response to structural domination and exploitation. A significant implication of re-casting territorial borders as functions or products of empire is that doing so lays bare the level at which intervention is required to achieve justice. The problem of unauthorized economic migration is not merely or even fundamentally a problem of immigration law alone. It is a matter that goes to the core of our global political economy and the laws and legal institutions that structure it. Genuine border justice may require both a reformulation sovereignty doctrine as well as an entirely different theory of what it means to be interconnected on more equitable terms. While it is not the ambition of this dissertation to take on this prescriptive project, such a reckoning must begin from an acknowledgment of the asymmetries embedded in international economic law. Any reforms of the particular legal rules governing migration should flow from this shift in normative framing.