Undocumented migrants and the failures of universal individualism.

• Author: Ramji-Nogales, Jaya
• Position: Abstract through II. Human Rights Law and Undocumented Migrants C. The Contested Content of Human Rights Law 2. Procedural Due Process in Deportation Proceedings, p. 699-729

ABSTRACT

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This Article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants in international human rights law, which are far fewer than often assumed. The Article demonstrates through a close analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by suggesting three alternate approaches-substantial reform of the current human rights system state-based political responses, and social movements-to protect undocumented migrants and other vulnerable populations.

TABLE OF CONTENTS I. WHAT'S WRONG WITH HUMAN RIGHTS? THE FAILURES OF UNIVERSAL INDIVIDUALISM A. Human Rights Law's Hierarchy of Suffering B. Human Rights Law's Disguised Political Dimensions C. Human Rights Law Obscures Global Inequality D. Human Rights Law Crowds Out Alternative Worldviews II. HUMAN RIGHTS LAW AND UNDOCUMENTED MIGRANTS A. Being Undocumented B. Human Rights from the Perspective of Undocumented Migrants C. The Contested Content of Human Rights Law.. 1. Territorial Security. 2. Procedural Due Process in Deportation Proceedings. 3. Nondiscrimination Based on Immigration Status 4. Family Unity. III. CONSTRUCTING VULNERABILITY: SOVEREIGNTY, GLOBALIZATION, AND HUMAN RIGHTS A. History of Human Rights: Sovereignty Challenged? B. Globalization and Human Rights: Manufacturing the Undocumented Migrant IV. REALIZING A NEW APPROACH TO PROTECTING UNDOCUMENTED MIGRANTS A. Ameliorating the Existing Human Rights Structure: More Universal, Less Individualist B. Long Live Sovereignty?: A State-Based Approach C. Social Movements: Aggregating Interests Beyond the State V. BEYOND HUMAN RIGHTS: ENGAGING WITH SYSTEMIC INJUSTICE In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. (1) Amnesty International's "Immigrants' Rights are Human Rights Campaign" declares that "[a]ll immigrants, irrespective of their legal status, have human rights." (2) The American Civil Liberties Union claims that "[njumerous international human rights documents firmly establish the principle that no human being can be outside the protection of the law or 'illegal' ... [and] that discrimination and abuse based upon immigration status is a violation of human rights." (3) Human Rights Watch goes so far as to suggest that "a human rights framework strongly supports a program of earned legalization for undocumented immigrants in the US." (4) Even Eric Holder, the U.S. Attorney-General, stated recently that "creating a pathway to earned citizenship for the 11 million unauthorized immigrants in this country ... is a matter of ... human rights." (5) In a similar vein, legal scholars have noted that "irregular migrant workers are entitled to the full range of human rights" (6) and that "[m]ost human rights are guaranteed irrespective of an individual's immigration status; they are a function of a person's status as a human being, not as a citizen of a particular state." (7)

The assumption underlying these pronouncements is that international human rights law affords undocumented migrants substantial protection against the mistreatment, exploitation, and abuse they face in their host countries. They even suggest that the undocumented are recipients of specific rights under international human rights law, such as the right to nondiscrimination based on immigration status and the right to regularize their status. In reality, the human rights framework's protections of the undocumented are far less robust than these statements suggest. That is the problem this Article takes up in greater detail.

It is understandable, given human rights law's claims to universalism and individualism, that those seeking to assist migrants would turn to the human rights framework as a source of protection. The international treaties that comprise the current human rights regime were drafted as a response to the mass atrocities perpetrated during the Second World War. (8) The international community set up this new legal structure to ensure that states would no longer be able to arbitrarily deny rights to people within their territory or control; instead, rights would attach to each individual by virtue of their humanity. The protections available within the human rights canon were to be universally applicable and reflective of shared universal human values.

These were noble and ambitious claims. But has human rights law lived up to its promises? This Article takes universal individualism on its own terms, measuring its success by the standards of universal content and coverage and individual applicability that this approach to human rights sets forth. In other words, this Article uses the case study of undocumented migrants to determine whether the story that universal individualism tells about itself is accurate. On paper, many human rights protections apply to all humans, whether or not they have lawful immigration status. But it is extremely difficult for migrants to exercise these substantive rights when they can be discriminated against based on their immigration status and deported at any time. These vulnerabilities must first be addressed so that undocumented migrants have the ability to claim other rights. (9) International human rights law offers undocumented migrants insufficient protection against deportation and discrimination, safeguarding instead sovereign interests in territorial control. Rather than protecting the vulnerable against sovereign abuses, universal individualism has entrenched existing power imbalances. The perspective of undocumented migrants is not adequately reflected in the ostensibly shared universal values manifested in current human rights law.

These failures of protection raise larger questions about the universal individualist approach to human rights. This Article begins with a systematic critique of the failures of universal individualism. The current human rights project presents a false universalism that erases certain forms of suffering from popular discourse. These claims to transcendent universalism imply that human rights law is apolitical thereby disguising the political choices that determine its content. Human rights law's narrow focus on the individual obscures larger questions of structural inequality. The individualist approach presents an atomistic conception of society that overlooks the importance of social ties and group-based identities.

After setting out this critical framework, the Article describes who undocumented migrants are and which rights and values they might prioritize if the universalist approach were to include their voices. It next explores the contested content of four such rights: the right to territorial security, the right to procedural due process in deportation proceedings, the right to nondiscrimination based on immigration status, and the right to family unity. The latter right is the most widely available to undocumented migrants, though still limited; the first is unavailable in any forum. The absence of a right to territorial security is particularly problematic because it renders undocumented migrants vulnerable and unable to protect themselves against exploitation and abuse.

This Article next briefly discusses why the universal individualist approach to human rights has failed to protect undocumented migrants. It suggests that, contrary to common perception, human rights law may actually reinforce sovereign interests and exacerbate the harmful effects of globalization on vulnerable populations. This Part begins with a critical history of the relationship between human rights and sovereignty, highlighting the evolution of the universal individualist approach over time. It then focuses on the interaction of globalization and human rights, illustrating the role of global economic inequity in creating migration flows and explaining how the universal individualist approach furthers this distributive inequality.

In the world of social justice, universal individualism in the form of international human rights law has become the hegemon. Efforts to protect vulnerable populations begin and end with human rights. Particularly in legal scholarship, strategies to ameliorate the situation of vulnerable groups outside the scope of human rights law focus on how that law might be extended to cover these groups. Given the failures of universal individualism, this Article suggests instead other approaches outside of or alongside international human rights law that might more effectively protect undocumented migrants and other vulnerable populations.

Using the criticisms of universal individualism as a roadmap, this Article provides three alternative approaches to protecting vulnerable populations. It first lays out ways in which the existing human rights structure could be reformed to minimize the shortcomings of the universal individualist approach. It next presents a state-based approach to social change, discussing methods through which migrant-sending states can work individually and in coalition with other states to protect their nationals in migrant-receiving states. Finally, the Article suggests a social movements approach to protecting undocumented migrants, in the form of counterhegemonic transnational networks. It ends with a call to examine critically the universal individualist approach to human rights and to envision alternative ways to protect vulnerable populations by engaging more broadly with global...