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Southern Urbanism, Legalization, and the Limits of Migration Law

  • Loren B. Landau (a1)

As a relatively well-defined subset of global migration law, refugee law and policy present important sites for contestation, agenda setting, normative pronouncements, and symbolic action. They are also an effective test of whether formal state obligations—in this case those outlined in the 1951 UN Refugee Convention—translate to protection in the weakly legalized environments in which most of the world's refugees reside. This essay asserts that they do not. Building on research and public engagement across African cities, this short contribution makes a three-part argument to that end. First, it considers categories by highlighting the narrow practical and analytical value of focusing on legal reforms and formal “refugee” policy as determinants of protection; given that legal status and documentation have only limited practical protection effects. Moreover, it points to the potential dangers and dysfunctions of a protection regime premised on people “performing” or “representing” refugeeness. Second, in considering areas for intervention in improving the protection of migrants, it calls for rescaling the legal approaches to migrant and refugee protection. Given the micro and translocal (often transnational or diasporic) processes informing refugees’ experiences, approaches need to be both more and less geographically targeted. Lastly, it calls for an intersectional approach to law and advocacy that more holistically and politically situates refugees and migrants within their social and regulatory environments. If nothing else, it asks analysts and advocates to take more seriously subnational political formations—formal and informal—as sites of policy formation and practice. In doing so it suggests that the most effective tools for addressing migrant and refugee vulnerability are often more political than legal. Moreover, within the realm of international and domestic law, jurisprudence in fields other than migration and asylum (e.g. environment, labor, or trade) may offer the most effective inroads into processes producing displacement or imperiling people on the move or on arrival. Given the confines of space, data is sparingly used for illustrative purposes.

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2 The research took place in Johannesburg, Nairobi, Maputo, Kampala, and Lubumbashi.

3 See Anne Davies & Karen Jacobsen, Profiling Urban IDPs, 34 Forced Migration Rev. 13 (2010); S. Pavanello et al., Hidden and Exposed: Urban Refugees in Nairobi, Kenya, Humanitarian Policy Group Working Paper (2010); Roger Zetter & George Deikun, Meeting Humanitarian Challenges in Urban Areas, 34 Forced Migration Rev. 5 (2010).

4 Andreas Wimmer & Nina Glick Schiller, Methodological Nationalism, the Social Sciences, and the Study of Migration: An Essay in Historical Epistemology, 37 Int'l Migration Rev. 576 (2003).

5 H. Arendt, The Origins of Totalitarianism (1951).

6 Guillermo O'Donnell, Why the Rule of Law Matters, 1 J. Democracy 32 (2004).

7 These findings were first described in Loren B. Landau & Marguerite Duponchel, Laws, Policies, or Social Position? Capabilities and the Determinants of Effective Protection in Four African Cities, 24 J. Refugee Studies 1 (2011). See also, Sangeeta Madhavan and Loren B. Landau, Bridges to Nowhere: Hosts, Migrants and the Chimera of Social Capital in Three African Cities, 37 Population & Dev. Rev. 473 (2011).

8 For details on the survey data, see Landau & Duponchel, supra note 7.

9 See The Sphere Project in Brief, The Sphere Project.

10 Philip Selznick, Legal Cultures and the Rule of Law, in The Rule of Law After Communism: Problems and Prospects in East-Central Europe (Martin Krygier & Adam Czarnota eds. 1999).

13 For such approaches, see Filip De Boeck, Kinshasa: Tales of the Invisible City (2004); Garth Myers, African Cities: Alternative Visions of Urban Theory and Practice (2011).

14 While my use of “precarity” is influenced by the work of Guy Standing and others, I am not speaking of the economic uncertainty associated with declining industrial production, the weakening welfare state, or crumbling unionization. These processes are largely foreign to African cities outside the relatively industrialised Southern cone. Instead, precarity refers to a generalized condition of economic uncertainty and unpredictability. See Guy Standing, The Precariat: The New Dangerous Class (2011).

15 Evelyn Z. Brodkin, Street-level Organisations and the Welfare State, in Work and the Welfare State: Street-level Organisations and Workfare Politics 32 (Evelyn Z. Brodkin & Gregory Marston eds., 2013).

17 James Holston & Arjun Appadurai, Cities and Citizenship, 8 Pub. Culture 199 (1996).

19 Manuel Castells, The Space of Flows, in The Castells Reader on Cities and Social Theory 314 (Ida Susser ed., 1996).

20 Zygmunt Bauman, Globalization: The Human Consequences (2000).

22 See Loren B. Landau & Iriann Freemantle, Beggaring Belonging in Africa's No-Man's Lands: Diversity, Usufruct and the Ethics of Accommodation, 42 J. Ethnic & Migration Stud. 933 (2016); see also, Achille Mbembe & Sarah Nuttall, Writing the World from an African Metropolis, 16 Pub. Culture 347 (2004).

24 States of Imagination: Ethnographic Explorations of the Postcolonial State (Thomas Blum Hansen & Finn Stepputat eds., 2010).

25 Wendy Cadge & Elaine Howard Ecklund, Immigration and Religion, 33 Annual Review of Sociology 359 (2007).

26 See Landau & Freemantle, supra note 22; see also, David Garbin, Marching for God in the Global City: Public Space, Religion and Diasporic Identities in a Transnational African Church, 13 Culture & Religion 425 (2012); Nina Glick Schiller et al., Beyond the Ethnic Lens: Locality, Globality, and Born-again Incorporation, 33 Am. Ethnologist 612 (2006).

27 See Peter Kankonde, Taking Roots in the Name of God?: Super Diversity and Migrant Pentecostal Churches’ Legitimation and Social Integration in Post-Apartheid South Africa (2016).

28 Jack Donnelly, Universal Human Rights: In Theory & Practice (2d ed., 2003).

29 Jeffrey C. Isaac, A New Guarantee on Earth: Hannah Arendt on Human Dignity and the Politics of Human Rights, 90 Am. Pol. Sci. Rev. 61 (1996); see also, Arendt, supra note 5.

30 Rchard Thompson Ford, Universal Rights Down to Earth 68 (2011).

31 Yasemin Soysal, Changing Citizenship in Europe: Remarks on Postnational Membership and the National State, in Citizenship, Nationality, and Migration in Europe 17–29 (David Cesarani & Mary Fulbrook eds., 1996).

33 Didier Fassin, Heart of Humanness: The Moral Economy of Humanitarian Intervention, in Contemporary States of Emergency 269 (Didier Fassin & Mariella Pandolfi eds., 2010).

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