Undocumented Migrants and the Failures of Universal Individualism

In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. But a closer look at international human rights law reveals that it is extremely limited in its protections of the undocumented.  My draft article, Undocumented Migrants and the Failures of Universal Individualism, 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 the protections available to undocumented migrants international human rights law, which are far fewer than often assumed. The paper demonstrates through a detailed analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by stepping away from human rights law and offering a radically new approach to protecting undocumented migrants and other vulnerable populations.

This paper advances one of the first serious critiques of international human rights law. Though legal scholars have presented critical perspectives on domestic law for over thirty years, few academics have applied these critical methods to international law. The dearth of critical scholarship on international human rights law in particular is striking.   This draft article begins to fill that gap by exploring the politics and power interests that underlie international human rights law. It describes the limitations of the universal individualist approach to human rights, highlighting the ways in which false universalisms can obscure dominant power structures.

It is widely assumed that international human rights law extends robust protections to undocumented migrants, given that these rights are said to attach to every person simply by virtue of being human. A closer look, however, reveals that this is not the case. Major human rights treaties and their interpretive bodies have carved out important segments of rights that do not apply to undocumented migrants. More to the point, given that the undocumented are at constant risk of deportation, they are often unable to claim any of the substantive rights that apply to them. This paper upends assumptions by delivering a detailed catalogue of international legal protections that undocumented migrants might want if their voices were incorporated into the human rights debate.

Putting the critical analysis of human rights law to work, the draft suggests a new approach to protecting undocumented migrants and other vulnerable populations. Where protections are lacking, most scholars advocate for the extension of human rights law to encompass the needs of a particular group. This paper finds that option lacking as a stand-alone solution. It instead proposes two alternatives that break away from the human rights framework: a return to a state-based approach to protecting citizens abroad and a social movements strategy in the form of counter-hegemonic transnational networks. Unconstrained by the strictures of human rights law, these methods can open up space to imagine breathtakingly novel avenues to social change.

The draft is still very much a work-in-progress and comments are welcome!

(cross-posted on Concurring Opinions)

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2 responses

  1. Thanks, Vladislava. Noll’s article is excellent, and one of the few out there critical of human rights law with respect to undocumented migrants. My approach to the problem is a bit different, but our theories are generally in agreement.

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