Since the middle of the 19th century, international law in Europe has struggled to reconcile free movement for Europeans and their descendants in settler colonies with a right of states to control the migration of racialised foreign workers. Until the First World War, race was seen as an appropriate criterion to distinguish those who have free movement from those who do not. When contestation by Japan and by anti-colonial activists made race problematic as legitimation, migration was construed as part of the reserved domain of states that was not subject to international law. After decolonisation, the 1985 Abdulaziz judgment of the European Court of Human Rights marked the abandonment of the reserved domain doctrine, while at the same time introducing a uniquely limited application of human rights to migration. This article analyses how international law in Europe has not, as is often assumed, been characterised by increasing migration restrictionism. Instead, it has focused on justifying free movement for some, and restrictionism for others. This becomes apparent when the inter-connections between international law, racialisation and the European labour market are taken into account.
‘The Split Legality of European International Law on Migration since 1848’, European Journal of International Law Vol. 37, Issue 2 (2026)