What do we learn by reading the international law of migration from the perspective of migrants from the Global South? Deftly weaving together various strands from legal and social science literature to produce a brilliant new theoretical tapestry, Usha Natarajan’s book chapter, Third World Approaches to International Law (TWAIL) and Migration, offers a relational and contextual take on that question. She suggests three new ways of understanding international law in this sphere: as a harmful relationship between control and protection; as a constructor of categories that limit contestation; and as a phenomenon destructively co-constitutive of migration. This critique lays the groundwork for her proposal to build an international law of migration that is “more expansive, evidence-based and ethically consistent . . . as advocated for by TWAIL scholars.”
TWAIL is a movement of international legal academics that coalesces around a shared critique of the Global North’s domination of knowledge production in the field. TWAILers offer a diverse set of viewpoints and methodologies, yet share a commitment to foregrounding the perspectives of the people of the Third World in international law through policy-making, practice, and scholarship. Prof. Natarajan offers the reader both a useful overview of existing TWAIL literature on international migration law and an important new framing of that work, elucidating the synergies that emerge when the range of TWAIL insights are put in conversation with each other.
Prof. Natarajan’s first analytical move sets out two separate but related categories that constitute the international law of migration: laws of control, which determine who moves and who decides who can move, and laws of protection, which focus on the treatment of migrants. The chapter emphasizes the recency and contingency of control laws, describing how international law produces and normalizes the “sovereign prerogative,” manifested in extreme deference to state authority to control the movement of migrants. These laws of control construct the migrant as a vulnerable being, necessitating laws of protection to contest that vulnerability. Prof. Natarajan highlights the futility of this project, suggesting that laws of protection may be no more than an effort to salve the global community’s conscience in the face of exploitation and abuse of migrants, and to offer migrants hope for a brighter future that never materializes. She also explains insightfully the dangerous relationship between the two sets of laws, namely that “control laws ensure that protection laws are permanently necessary but inadequate.” This relational understanding of international migration law shines an incisive, critical light on the shortcomings of the field.
The second contribution draws together several strands of the legal and social science literatures, explaining the range of ways in which international law structures contemporary understandings of migration and limits the universe of available challenges. In short, international law fails to attend to migrants’ perspectives, instead constructing binaries and hierarchical categories that are disconnected from the reasons for and results of human mobility. The law creates exceedingly narrow categories of migrants who can avail themselves of the protections of non-refoulement, which is the only exception to the sovereign prerogative of border control. International law also prioritizes political and civil rights over social and economic rights as a basis for protection, creating arbitrary hierarchies of suffering. The law’s focus on crisis rather than systemic causes of migration precludes rational and sustainable governance of migration. These criticisms have been levied against international migration law and international law in general by a range of TWAIL scholars; the contribution of the chapter is to tie them together cohesively and coherently into an overarching critique of the law. Prof. Natarajan offers an important reminder that this constrained understanding is contingent, not natural, creating space to imagine more emancipatory futures.
Finally, the chapter offers a third valuable insight, namely that migration and international law are co-constitutive, defining and legitimating each other to the detriment of migrants. In the common understanding of international law, migration is a domestic matter, and all decisions about law, policy, and enforcement are made by the state. In other words, international law constructs a sovereign world that restricts human mobility by default, thereby creating the “migrant.” Prof. Natarajan contrasts contemporary international law’s restrictions on human movement with the centrality of migration to imperialism, supported by international legal legitimation of the mass migration of settler colonials from Europe to the Global South. She links this paradox with international law’s preoccupation with mobility to the Global North, and the looming specter of “brown hordes” at the border, despite the reality that most human movement occurs within the Global South. Without the “migrant” that it has constructed, the sovereign would lose substantial existential justification, and without the sovereign prerogative, Global South people on the move might be considered humans rather than migrants.
Prof. Natarajan offers an invaluable introduction to the TWAIL literature on international migration law, as well as an insightful synthesis of that work into an original theoretical framing of the field. She foregrounds a powerful call from TWAIL scholars to work towards a “legal framework more closely attuned to why people are moving, with a view to ensuring more humane and orderly population movement.” This chapter provides scholars and practitioners with a formidable foundation to guide the struggle towards that future.
