Table of Contents Introduction I. The Territorial Sovereign Nation-State and Its Right to Exclude Political Strangers A. The Sovereign Nation-State and Its Right to Exclude B. The Right to Exclude in Practice C. Political Stranger Exceptionalism II. What Political Strangers? A. Colonial Imperialism B. Neocolonial Imperialism III. Revisiting the Right to Exclude A. De Facto Co-Sovereigns and the Right to Exclude B. The Right to Admission and Inclusion: Migration as Decolonization C. Rethinking Sovereignty, Self-Determination, and Decolonization Conclusion Introduction
The term "economic migrant" has become a moniker for a category of international migrant that national populations across the world view generally with suspicion, occasionally with pity, and increasingly with hostility. (1) Europe's response to African migrants offers an example. Between 2014 and 2018, over 1.8 million refugees and migrants risked their lives in journeys across the Mediterranean Sea attempting to reach Europe, and at least 17,000 of them paid with their lives. (2) The response of European states, especially to those international migrants falling outside of the "refugee" definition, (3) has been a righteous assertion of their sovereign right to exclude non-nationals. The June 2018 Aquarius search-and-rescue sea mission illustrates this phenomenon. The Aquarius--jointly operated by two international nongovernmental organizations--rescued 629 African refugees and migrants off the coast of Libya. (4) It was denied permission to dock by Italy and Malta, the two closest countries. (5) The Italian Interior Minister, whose party's successful election platform was strongly anti-immigrant (and even xenophobic), (6) defended his country's decision as a justified response to illegal immigration. (7) The French President publicly criticized Italy's rejection of the Aquarius refugees and migrants, (8) but this criticism belied the similarly aggressive anti-immigrant policies which even more centrist European nations have adopted, (9) including through the European Union. (10)
Unlike the refugee, whose international flight is by definition a last resort, the term "economic migrant" is typically reserved for groups or individuals whose movement is popularly and legally understood to be a matter of preference, defined by a fair degree of political agency, and motivated primarily by the desire for a better life. (11) Among economic migrants, this Article focuses on those who move from the Third World to the First ("Third World migrants"), including those who do so without legal authorization from the countries they seek to enter. The term "Third World" is a geopolitical and ideological category, and in this Article, the term refers to the territories and peoples that Europeans colonized primarily between the mid-eighteenth and twentieth centuries. (12) The corresponding category of "First World" refers to the metropolitan European colonial powers and to those settler colonies that preserved their European identities even after gaining independence. (13)
Fitting the archetype of the Third World migrant, for example, is an Ivorian national repatriated from a Libyan detention center whose primary reason for migrating to Europe is the desire to improve his living conditions (as distinct from the inability to find employment in Ivory Coast). (14) Another example would be a Nigerian, Pakistani, or Zimbabwean migrant whose unauthorized journey to or presence in the United Kingdom is the product of deliberate planning, sacrifice, subterfuge, and ingenuity, and who is uncoerced by any direct threat of persecution in her country of nationality. For Third World would-be migrants seeking admission to and inclusion in First World nation-states, (15) the project of their exclusion from the latter has reached a fevered, bloody pitch. Those who seek legal authorization even just to visit the First World are faced with complex and often prohibitively expensive visa restrictions that, notably, do not apply to the international mobility of First World citizens. (16) And those Third World migrants who dare risk their lives to migrate to First World countries without legal authorization are confronted with increasingly militarized border regimes negotiated by First and Third World nation-states, and which amount to multilateral projects for the regional containment of Third World persons beyond the First World. (17)
Part I of this Article explains how, according to the governing law and the dominant ethics that underpin it, national exclusion of so-called economic migrants (minus any violence) is not only permissible but even righteous as a matter of sovereign self-determination. In international and domestic law, the territorial nation-state is the privileged vehicle for the collective self--determination of peoples: Political community at the nation-state level enjoys the strongest legal and political recognition, and sovereignty at this level is, at its core, about the capacity and right to self-determine collectively on grounds established by citizens or political insiders. (18) Today, the national right to exclude foreigners or nonnationals is considered a fundamental incident of this sovereignty and a requisite of collective self-determination. Both as a matter of law and on predominant ethical accounts, nonnationals are definitionally "political strangers" with no cognizable claims to shaping the trajectory of the respective nation-state, and certainly no say as to the terms of their admission and inclusion within that body. (19)
Even where international law and legal scholarship have contemplated expanding the rights of nonnationals to territorial admission and political inclusion, they have relied on a logic that holds fixed the nonnational's status as a political stranger, instead making the case for why she is nonetheless worthy of discretionary exemption from the full force of the right to exclude. The refugee category exemplifies this political stranger exceptionalism. States that have ratified the 1951 Refugee Convention (20) and its Protocol (21) have dramatically limited the exercise of their right to exclude where refugees are concerned, recognizing legal claims to admission and inclusion for political strangers whose migration is driven by fear of certain forms of persecution. (22) There also exists a robust legal literature based in international human rights that has argued the general case for political stranger exceptionalism for nonnationals who fall outside the refugee definition, but whose human rights situation either in their country of origin or during flight is deemed to warrant admission to, and varying levels of inclusion in, the receiving state. (23) But even though international human rights principles sustain a more cosmopolitan approach to borders, (24) international law as a whole still most faithfully reflects the political theory of liberal nationalists, who defend the sovereign right to exclude as existential, making limited exceptions for the admission and gradual inclusion of political strangers who are otherwise at risk of persecution or extreme human rights violations. (25)
This Article challenges the logic of this dogmatic account of territorial nation-state sovereignty where encounters between Third World peoples and First World nation-states are concerned. It argues instead that First World nation-states have no right to exclude Third World migrants, for reasons tied to the distributive and corrective justice implications of the legacies of colonialism. To make this argument, this Article proceeds in three Parts.
As mentioned above, Part I explains the right to exclude as an incident of nation-state sovereignty and political stranger exceptionalism as the prevailing discretionary limit on this right.
Part II looks to the history and contemporary legacy of European colonialism to propose that encounters between Third World migrants and First World nation-states are subject to an entirely different ethics. (26) Between the nineteenth century and the first half of the twentieth century alone, at least 62 million Europeans emigrated to colonial territories across the world, (27) with enduring consequences for those territories. (28) As Part II explains, these Europeans were the quintessential economic migrants, yet in a striking contrast to the mortal costs international law imposes on many Third World economic migrants today, European colonial economic migrants benefitted from an international legal and imperial regime that facilitated, encouraged, and celebrated white economic migration. This historical perspective reveals the irony of present-day First World righteous exclusion of Third World economic migrants. (29)
Even as economic migrants moved out of Europe, the colonial project pulled human and natural resources in the reverse direction, for the advancement and prosperity of Europe and Europeans. (30) Colonial-era imperial interconnection politically and economically subordinated Third World peoples for the purposes of shoring up the prosperous, collective self-determination of First World nations. (31) Thus, as other scholars have argued, a salient harm of colonialism was the unequal incorporation of Third World sovereign peoples into First World political communities and their exploitation as subordinates within the resulting imperial formations. (32) Colonial migration made all of this possible, and international law along with legal and political theory ensured that this migration--for Europeans--was firmly and righteously protected.
When formal decolonization of the Third World eventually gained momentum as a legal and political project, it was largely framed as the pursuit of political equality for colonized peoples--their capacity to self-determine--through the achievement of nation-state independence. Although international law facilitated formal independence for many political communities, for...