Rethinking the Law and Politics of Migration
2023 was, to put it mildly, a terrible year for (im)migrants and their human rights. With the declared end of the Covid pandemic came an end to the exceptional border policies it had led to which had further restricted already weakened migrants’ rights. Yet governments have largely chosen to replace them with legal frameworks that incorporated many of the same rights negating policies and ideas- except for this time they put them on a permanent legal basis. Liberated from their initial emergency rationales, asylum bans have now joined outsourcing and overpopulated mass detention camps as standard methods of migration governance. Previously, it was possible that governments simply did not know how to respond to sudden mass influxes of refugees and asylum seekers – thus perhaps explaining (though not excusing) the adoption of measures that ended up violating, undermining or simply denying the applicability of human rights norms. Yet this is hardly tenable anymore. Not only is there nothing unforeseeable about the number of arrivals anymore but there is increasing evidence that governments simply do not care for human rights or basic rule of law norms when it comes to governing (im)migration. What they do care about is their re-election. And in many countries, this is seemingly best secured these days by trading in rhetoric and policies that paint migration exclusively as an existential threat to be managed with the full and legally unregulated power of the sovereign state, with all the cruelty and violence this entails.
A Never-Ending Cycle of Restriction?
As an aspiring scholar of migration law and constitutional theory, I follow the current political developments with a heavy heart and a deepening sense of despair. I have previously written about two events that particularly concerned me: the German government’s failure to hold the line in its opposition to certain aspects of the new CEAS and the UK government’s dismissive response to its Supreme Court’s ruling that the Rwanda agreement was unlawful. Both of these happened in quick succession and form part of an emerging pattern of decline amongst established liberal democratic constitutional orders in their commitment to human rights and the rule of law as governing principles when it comes to regulating immigration. They affected me as a German citizen with a deep rooted but perhaps misplaced faith in Germany’s constitutional order of values who spent her formative adult years studying constitutional law and theory in the UK. And, of course, they affected me as an aspiring constitutional theorist who spends much of her time today thinking about the role of law and human rights in a liberal democratic system of governance, especially as it relates to questions of citizenship and migration.
The UK government’s current attempt to legislate fictions into a legal reality with the Safety of Rwanda Bill, the Belgian government’s refusal to implement countless court orders, recognizing asylum-seekers’ right to reception, or the French government’s recent adoption of a clearly unconstitutional and highly repressive new immigration law illustrates the scale of the rot. In light of this pattern, I increasingly confront a sense of futility when I turn to my research, when I write another paper on this or that human right, or when I think about migration law at all. What is the point of studying law as a tool of political governance and a regulatory ideal when law is reduced simply to what politicians decide it means today? What is the point of writing yet another article or blogpost that points out the way in which a new policy violates this or that human right or principle? Why continue to spill ink insisting that rights are not oppressive elite tools that wrongfully delimit the general will but important legal devices that structure democratic polities to diminish patterns of subordination and the possibility for violent conflict that necessarily arise amidst our unavoidable diversity and disagreement?
The (F)Utility of Legal Discourse
I ask myself this question as an editor of a legal discourse platform, too. The world appears to be warring, hurting, and burning wherever one looks and perhaps in the face of one’s own individual impotence to do anything about it, everyone wants to write about it, add an opinion piece here, drop their analysis there, highlight the few successes and bemoan the many losses (myself included.) Verfassungsblog’s inbox has, for the last few months, been nearly unmanageable: given our limited number of publication spots, we must constantly make decisions about which issue is most important to bring “press” to so to say. But even more importantly, what difference does it make? Aren’t we all just talking within our own echo chambers at this point? After all, how am I going to convince a dedicated AfD voter that the party they prefer to vote for is dangerous- not just for (im)migrants but for everyone – and that they should, in fact, recoil at the idea of “remigration” for being immoral, inhumane and illegal, all at once?
But perhaps this is asking the wrong question. As a committed democrat, I have to accept that people think differently and will disagree about what is, ultimately, a complex and difficult question, irrespective of how much moral, normative or theoretical clarity I might think I possess. How to govern migration raises foundational questions about how we conceive the political community, the state, the idea of citizenship; how we address historical injustices such as colonialism and on-going challenges such as climate-change and ethnonationalist populism; and how we think about responsibility, rights and duties towards each other. I might think that some version of liberal cosmopolitanism can provide us with the best possible answer to each of these questions, but I must accept that others will disagree and that these views might enjoy majority support in the political sphere.
But to accept disagreement is not to accept defeat. At a time where my own sensibilities about what our constitutional and treaty-based commitments demand is not represented in governmental policy and/or majority sentiment, perhaps the point of (legal) writing and discourse lies predominantly in not giving up space. It is a way to prevent public debate from being exclusively filled by voices that propagate ideas and policies that are illegal, immoral or inhumane; to resist the seemingly irresistible idea that there is only one way of responding to migration- with ever more restriction and the violence and death it produces, which seems to almost exclusively carry the day in the current political climate. It provides an opportunity to challenge the flourishing of false binaries between open and closed borders, between deserving and undeserving humans, between refugees and economic migrants, which foreclose any productive engagement with how to regulate the phenomenon of migration responsibly and humanely. By insisting that there are other ways of thinking about this question, other possibilities for governing human migration, we leave the door open for change.
Imagining Change
This, at least, was the intention that underpinned the call for this Symposium. We asked leading scholars of the law and politics of migration to reflect on the state of the field and to ask what an alternative approach to the current cycle of restriction might look like. What we received is a stimulating set of essays that both demonstrate and map the nature of the challenge we are facing but also the vitality of the field and the many ways in which legal methods, ideas and strategies have been and can be utilized to push back against the prevailing anti-immigrant public discourse and the rights-denying policies it has put into place.
Some of the contributions make us confront and understand the scale of the problem. The contribution from SARAH GANTY and DIMITRY KOCHENOV, for example, highlights four techniques that have been used by the EU to govern (im)migration through what they term “lawlessness law-” the deployment of the rule of law to void the law of any substance and render migrants’ rights unthinkable. ALEKSANDRA ANCITE-JEPIFÁNOVA, meanwhile, explains how both real and made-up security concerns have been abused to justify the adoption of human rights denying policies in the EU. JOYCE DE CONINCK and GIULIA RAIMONDO demonstrate the EU’s unique, supranational border legal architecture disrupts conventional state-centric understandings of border management, while fostering impunity for human rights violations in its enforcement.
Other contributions show how legal tools, methods and rights might have to be rethought and mobilized to delimit and counteract the human rights and rule of law denying legal policies, frameworks and practices that characterize contemporary migration and border control. JÜRGEN BAST’s contribution highlights how we have so far overlooked the potential of the right to freedom of movement for asylum-seekers and reminds us of the work that has yet to be done on this question. MAXIMILIAN PICHL, by contrast, considers the possibilities for effective strategic litigation under the new CEAS, recognizing that there is a much better infrastructure in place than there used to be when the migration crisis was first declared.
In light of the increasing criminalization of humanitarian conduct, STEFANO ZIRULIA and CATHRYN COSTELLO map how domestic courts have begun to push back against this trend, while VIOLETA MORENO-LAX maps a different way to contest their legitimacy anchored in the European legal framework and its normative commitments. DAVID OWEN highlights how deeply the discourse of humanitarianism is intertwined with and justifies the push towards externalizing our human rights commitments. But CATHERINE BRIDDICK investigates how we might mobilize the tools and norms of international law to challenge the outsourcing trend by asking whether political agreements like the Rwanda Agreement are ‘forbidden treaties.’
Finally, some remind us that the migration ‘problem’ is one we have constructed ourselves and that solution(s) lie, in part, in recalibrating how we talk and think about it. DANA SCHMALZ sheds light on the role of numbers in migration debates where pictures of invading hostile masses close our eyes to the reality that ageing societies like Germany need immigration, and lots of it, to continue to flourish- both economically and demographically. ANUSCHEH FARAHAT, by contrast, concludes by encouraging us to see migration law and human rights as a lens and tool through which to invigorate the European political community and the normative project it stands for.
Special thanks goes to Stav Zeitouni, Joyce De Coninck, Moritz Schramm and Maxim Bönneman who, as always, have been instrumental in clarifying my thinking and writing on these questions.