This chapter addresses the involvement of academic research on international migration law in the political project of the global North to impose its view concerning international migration law on the global South. The purportedly well-established principle of international law that states have the right exclude foreigners has its origins in the US Supreme Court’s Chinese Exclusion case law. The doctrine holding that the right of exclusion is inherent in state sovereignty developed there has been adopted and transformed by the European Court of Human Rights. In order to show the continuing relevance of the Chinese Exclusion doctrine, I will analyse a rather everyday judgment of the European Court about boat people (J.R. et autres v Grèce 2018). This will be contrasted with a judgment about boat people from the global South, issued by the Papua New Guinea (PNG) Supreme Court of Justice (Namah v Pato 2016). I will then show how the PNG judgment, and law from the global South more generally, is sidelined in academic work, while Strasbourg judgments are treated as embodying the state of international law (even when they are being criticised). I will analyse this as an act of power erasing sources of international migration law from the global South. As an example, I include bibliometrics on the International Journal of Refugee Law. I will close by showing that this erasure can be, and actually is being resisted within the discipline of international law.
Inaugural lecture of the International Franqui Professor Chair 2020-2021, Ghent University: Youtube.
A version of this talk with a specific focus on settler colonies is Coloniality, Settler Colonialism, and International Migration Law (Annual Howard Adelman Lecture, Centre for Refugee Studies, York University, 17 June 2021), Youtube
As a result of the COVID-19 pandemic, international mobility all but ground to a halt by the second quarter of2020. Airline traffic dropped more than 70 percent, and thousands of grounded airplanesfilled up the runways.All over the world, travel restrictions and quarantine measures are still in place at the time of this writing, and cross-border mobility remains largely shut down for all but the most essential forms of travel. Although some countriespartially relaxed travel restrictions over the summer, there can be no question that the pandemic has fundamen-tally reconfigured global mobility and migration, even if only temporarily. Amidst these shifts, this symposiumdocuments and reflects critically on the implications of the COVID-19 pandemic for mobility and migrationacross international borders, on pertinent governance structures, and on thefield of global migration and mobilitylaw more broadly. A key hypothesis motivating the symposium is that COVID-19 has both laid bare and exacer-bated the discriminatory andflawed nature of current international rules related to migration and global mobility.Hence, we have invited our contributors not only to reflect on the implications of current developments, but alsoto imagine alternatives and to consider the possibility that COVID-19 might represent a kind of“Stunde Null,”anat least temporary reset, for the terms of global mobility and migration law.
The Symposium includes contributions by Guofu Liu; Frédéric Mégret; Florian Hoffmann, Isadora d’Avila Lima and Nery Gonçalves; Tesseltje de Lange, Sandra Mantu and Paul Minderhoud; Abdoulaye Hamadou; John Reynolds; and Ian Kysel and Chantal Thomas.
E. Tendayi Achiume, Thomas Gammeltoft-Hansen and Thomas Spijkerboer: Introduction to the Symposium on COVID-19, Global Mobility and International Law, AJIL Unbound 114(2020) 312-316
Case-law on migration from the global South is referred to at most as news items even in academic texts. What is referred to is the outcome: Libyan court suspends MoU; Papua New Guinea court ends offshore detention. In this blog, we take the case law of Libyan courts about the 2017 MoU seriously as law, and not merely as news.
Majd Achour and Thomas Spijkerboer: The Libyan litigation about the 2017 Memorandum of Understanding between Italy and Libya, eumigrationlawblog.eu, 2 June 2020
De mondiale mobiliteitsinfrastructuur: de dubbele bodem van de neoliberale legaliteit (2020), Sociologie 15(3), p. 333-346
Niger has implemented the UN Smuggling Protocol in such a manner that it introduced carrier sanctions on domestic bus travels. This implementation undermines free movement in the ECOWAS zone. The implementation has been sponsored by the EU through legal expertise, training and materials. This constitutes a continuation of European imperial history in Africa.
The New Borders of Empire. European migration policy and domestic passenger transport in Niger, in Paul Minderhoud, Sandra Mantu & Karin Zwaan (eds): Caught in Between Borders: Citizens, migrants and humans. Liber Amicorum in Honour of prof. dr. Elspeth Guild, Wolf Legal Publishers, Tilburg 2019, p. 49-57
Since 2014, the European Union has established three funds (for Africa, Syria, and refugees in Turkey) to implement its external migration policy. In this Article, we analyse whether these funds and their implementation are compatible with EU public procurement law. This leads to a mixed picture. The wholesale exemption of expenditure under the EU Trust Fund for Africa from public procurement is incompatible with EU law; the exemption is not motivated, and it is implausible that there is a crisis in all 26 African countries where the Trust Fund operates thorough the duration of the Trust Fund. However, some more limited exceptions may apply, allowing for exempting particular projects from public procurement. Whether or not public procurement has taken place is often not transparent. It is remarkable that the notion of emergency is used in a cursory manner. It is equally remarkable that European public procurement law is not well integrated in external migration policy.
European External Migration Funds and Public Procurement Law, in European Papers 4(2019):2, p. 493-521
Since the end of the Cold War, migration law and policy of the global North has been characterised by externalisation, privatisation and securitisation. These developments
have been conceptualised as denying access to migrants and as politics of non-entrée. This article proposes to broaden the analysis, and to analyse unwanted migration as merely one form of international human mobility by relying on the concept of the global mobility infrastructure. The global mobility infrastructure consists of the physical structures, services and laws that enable some people to move across the globe with high speed, low risk, and at low cost. People who have no access to it travel slowly, with high risk and at high cost. Within the global mobility infrastructure, travellers benefit from advanced forms of international law. For the excluded, international law reflects and embodies their exclusion before, during and after their travel to the global North. Exclusion is based on nationality, race, class and gender. The notion of the global mobility infrastructure allows for questioning the way in which international law reproduces these forms of stratification.
The Global Mobility Infrastructure: Reconceptualising the Externalisation of Migration Control, European Journal of Migration and Law 20(2018), 452-469
The externalization of European migration policy has resulted in a bifurcation of global human mobility, which is divided along a North/South axis. In two judgments, the EU Court of Justice was confronted with cases challenging the exclusion of Syrian refugees from Europe. These cases concern core elements of externalization, being third country agreements (the EU-Turkey Statement of March 2016) and visa requirements for refugees. This article seeks to analyze these judgments in the context of the broader developments in European migration law and policy. The core argument developed here is that the bifurcation of human mobility is reflected in a bifurcation of law. Excluded people are not merely to be excluded from European territory, but also from European law.
Bifurcation of people, bifurcation of law. Externalization of migration policy before the EU Court of Justice, Journal of Refugee Studies 31 (2018), p. 216-239
On 5 August 2016, the UN News Centre published a picture captioned UN team in Jordan uses cranes to hoist aid to Syrian refugees at sealed border. The picture is taken from Jordanian territory. The low mud wall behind the trucks marks the Syrian border. At the time, Amnesty International reported that more than 75,000 Syrian refugees were living in the desert on the Syrian side. The text accompanying the picture reports that “life-saving food and other supplies from the United Nations” are being “hoisted by crane and monitored by drones across the closed frontier” in what is called “a unique operation.” The World Food Programme delivered food packages, the International Organization for Migration contributed bread, and the UN’s children fund UNICEF hygiene kits. This picture, as well as the perky accompanying press release, captures the outcome of international, and in particular of European policies vis-à-vis the Syrian refugee issue. In 2011, Syria had 23 million inhabitants. At present, some 11 million of them have been uprooted; 6.5 million of them are internally displaced (IDP’s, including the 75,000 people at the Jordanian border), and 4.9 million have sought refuge outside Syria.
For the full blogpost see Forced Migration Forum, February 7, 2017