Solidarity in a Context of Illegalization

The conditions in which migrant solidarity currently operates are adverse, subject to state strategies that impede and curtail solidarity with irregularized populations. Law emerges, in this context, as a system of control and subjugation targeting non-citizens. As the essays in this symposium expose, law is used to stratify status and create layers of deservingness, distributing power unevenly and introducing divisions across nationality and racial lines that become legitimized.Footnote ¹ The intolerable becomes legal through a system that marginalizes certain “others.” The othering function of immigration law provides the starting place for our collective discussion on the role of solidarity.

The opening essay of the symposium foregrounds solidarity's aim to subvert the structures of abuse and domination entrenched in the legal system, to realize the promise of equal rights and universal justice. Solidarity is thus not only a principle, but constitutes a call to action, a “raised fist” against the laws and policies that exclude, expel, and oppress the “other.”Footnote ² In this way, it differs from related concepts of “kinship,” “friendship,” “charity,” or “humanitarianism.” It is through the law that states generate “status illegality,” de-subjectifying the migrant and negating their full rights.Footnote ³ It is the law that supports the ensuing hierarchies that solidarity aims to dismantle. It is the law that normalizes the pain and suffering that come with illegalization. But these circumstances are not a given. Illegalization does not fall from the sky. It is constructed through policies and practices of violence, hostility, and polarization devised and mobilized by the state. From containment to refoulement, from externalization to the militarization of borders, the climate is one of “active” precarization of the situation in which refugees and irregular(ized) migrants find themselves subjected to mechanisms of control that frustrate mobility and impede access to protection. Once adopted, these policies and practices of illegalization become normalized, institutionalized, and exploited to further the state's “fight” against irregular movement.

Such exploitation can take different forms, including “de-solidarity” and “anti-solidarity” toward migrants and refugees. The second essay argues that the prevailing trends of “de-solidarity” seek not only to limit expressions of solidarity vis-à-vis people on the move, but fundamentally dispute their validity.Footnote ⁴ Through a combination of rhetoric and praxis, several states co-opt the notion and embrace a position that actively problematizes any display of solidarity with irregular(ized) individuals, intentionally dismantling the infrastructure underpinning solidarity interventions. The likes of Orbán in Hungary and Trump in the United States offer examples of discursive and infrastructural tactics of de-solidarity that aim to undermine and de-legitimize solidarity with refugees and migrants. Moreover, practices connected with unauthorized migration are typically articulated in terms of criminality. Community-based forms of support are, as a result, portrayed as intolerable legal transgressions, even when performed to sustain life or provide basic necessities throughout migratory journeys. Counter-smuggling schemes are, in reality, “counter-solidarity” strategies states adopt to de-legitimize rescue, accompaniment, and similar measures.Footnote ⁵ Not only has irregular migration become illegal, but also its facilitation, whatever the purpose or motivation, as noted in the third essay of this symposium.Footnote ⁶ The criminalization of solidarity, based on overbroad definitions of the crimes of migrant smuggling and the facilitation of irregular entry, has firmly entrenched the “crimmigration” paradigm within the legal regime.

While solidarity is generally understood as the antidote to illegalization and criminalization, a final strand of contributions engage with its “dark side” and warn about its potential limitations. There is an ambivalence to solidarity that lies in its discretionary nature. Solidarity, the next essay argues, is supererogatory; it cannot be demanded or prescribed. It can accordingly be allocated in an arbitrary, if not discriminatory, manner.Footnote ⁷ There is a risk that solidarity thereby reproduces the very structures of discrimination and domination that it strives to eradicate. This discretionary quality also runs the risk of weakening legal obligations. When presenting well-established duties of rescue, for instance, in the language of solidarity, positivized norms of the law of the sea and the maritime conventions may be (mis)taken as optional and non-compulsory.Footnote ⁸ This is why it is important to foreground the normative dimension of solidarity and its commitment to rights, justice, and emancipation.

Solidarity Reactions: Mobilizing, Organizing, Fulfilling Rights

In a context of increasing backlash against migrants and restrictions on mobility across borders, where the needs for protection and support for marginalized populations have grown and changed, responses in the name of solidarity have also expanded, both through practical strategies and in their narratives. Cecilia Bailliet, appointed by the UN Human Rights Council as Independent Expert on human rights and international solidarity in October 2023, asks us to note the often overlooked second sentence of article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”Footnote ⁹ The interpretation of solidarity that Bailliet offers in considering this spirit of brotherhood (or siblinghood, we might say) is both in the fact of solidarity as a responsibility and an obligation of care, as well as a duty that belongs not just to states or international organizations but to each individual on the basis of shared humanity.Footnote ¹⁰ This expansion of solidarity duties seems essential, given the failure of states and international organizations to enact protections founded on this principle. However, there is also a recognized risk of leaving this responsibility to individuals without any state accountability for the conditions that generate the need for solidarity in the first place.

Two central questions arise in this symposium around the meaning of the individual and collective duty of solidarity in practice and the limits and possibilities of such actions. First, how is solidarity distinct from other collective actions of support, care, compassion, empathy, or aid? While definitions and approaches vary across the different contributions—and we do not want to pre-empt the debate by imposing our own—there is consensus that solidarity is not just a principle but also a praxis. Moreover, such action is transgressive, in the sense that it threatens existing power hierarchies, challenges the status quo, and seeks to transform it. This leads to the second set of questions that arise in this collection: who is in a position to offer solidarity? Who can undertake the risks of transgression that it implicates, who assumes the responsibility, and to what end?

The examples detailed here, including legal actions, community organizing, advocacy, and activism—representing different contexts in North America and Europe—present a variety of practices of solidarity and different goals. Throughout the symposium, we see different localities and temporal horizons for solidarity work, from community organizations in local spaces, and the possibility of their translocal connections, to broader forms of solidarity interventions in border-crossings. Motivations differ depending on the actors and coalitions that are part of these efforts.Footnote ¹¹ They may be guided by moralistic, transactional, or even strategic goals, yet they are often mediated by social norms, biases, and the politics of deservingness that contradict or limit their own agenda. Some solidarity actions focus not just on attending to the immediate conditions that generate the need for support, but on a broader transformation of exclusionary economic or political structures underlying that need, which affect both citizens and migrants alike. Others discuss multiple legal strategies at different levels, including movement lawyering, that challenge the state on its own terms, aiming to shape alternative policy, legal, and institutional frameworks. We might consider solidarity not just as work that is in opposition and in tension with other forces, but that is prefigurative, in the sense of creating alternatives in the present.Footnote ¹²

The essays undermine assumptions about who has the resources and capacity to offer solidarity, rejecting the bifurcation between subject and object: “Solidarity is precisely an anti-objectifying and mutualizing ethical practice that collapses such distinctions.”Footnote ¹³ The work of Otros Dreams en Acción and UndocuBlack highlights the possibility and the need for solidarity as bottom-up action, developed by those directly affected by the exclusions and violence of the border regime, namely individuals who are deported to Mexico, as well as undocumented Black communities in the United States.Footnote ¹⁴ Different solidarity actions, from urgent care to legal aid or mental health support, address immediate needs but are also understood as expressions of resilience and self-actualization, centering the work of solidarity as transformative and liberatory for all. Espacio Migrante's work contributes their understanding of solidarity as a resistance that must be paired with joy (resistir gozando—“resist with joy”—is the organization's motto) in order to re-imagine and re-shape systems that center shared wellbeing and can sustain the work of solidarity.Footnote ¹⁵

Much of the work of solidarity developed within a liberatory framework includes a focus on political education. As noted in the first essay, incorporating solidarity principles into teaching law students is essential to reconcile the tensions of working within the existing system to advocate for the rights and protections codified within the same laws and policies that create those exclusions.Footnote ¹⁶ Clinical legal work centers the need for educational spaces where we can collectively rethink normalized political and legal categories with a focus on solidarity, and build movements for the transformation of these systems. Taken together, the examples of solidarity-based responses discussed throughout the symposium illustrate the many possibilities for new and different avenues for action, resistance, and change.

Reconceptualizing the Relationship Between Solidarity, Migration, and Law

Above all, the essays offer a path forward through the complex and challenging thicket of migration, solidarity, and law. They advance a range of potential approaches to reconceptualizing solidarity and law in the context of migration: definitional, positional, legal, and affinitive. Each of these avenues presents a vision for reimagining the relationship between migration, solidarity, and law toward emancipatory ends.

This collection of essays provides a capacious and nuanced understanding of the complex ways in which solidarity operates on the ground, as well as firm limits on its content. On the definitional front, the authors remind us that solidarity is not fixed and universal, but rather continuously evolving, fluid, and context-dependent.Footnote ¹⁷ They emphasize the liberatory nature of solidarity, in that it can be justified only when it works in opposition to domination. They stress its transgressive character, defying extant power structures through shared commitments that traverse societal divides.Footnote ¹⁸

The authors also highlight the positional component of solidarity, identifying routes forward through new ways of understanding the commitments that underlie solidarity work. The emphasis is on the importance of the transnational dimension of solidarity and the work of solidarians in delinking political and social commitments from the national and the territorial.Footnote ¹⁹ The literature on “transversal solidarity” is drawn upon to make the case for cross-border collaboration that begins with an expectation of difference in social locations and identifications in order to start the process of re-humanization of migrants.Footnote ²⁰ On this basis, contributors push the reader to incorporate the translocal in solidarity, understanding that grassroots organizations with deep community ties must engage with immigration policies in other countries because of the impact of those policies on their local communities.Footnote ²¹

Solidarity holds the potential to transform law in powerful ways. The Revised Draft Declaration on Human Rights and International Solidarity enables the expansion of actors that benefit from and are subject to solidarity obligations, encompassing communities, civil society, and international organizations.Footnote ²² In turn, non-state actors can wield power by contesting state claims to monopoly over the legitimate interpretation of the law, and law itself. When mobilized in an egalitarian direction, law can transfigure into a solidarity-making space.Footnote ²³ As contributors point out, solidarity holds the promise to inform (and transform) the content of human rights law by combating the politics that undermine international law's ability to protect migrants.Footnote ²⁴

Finally, the essays chart a path forward that draws from the affinitive nature of solidarity. A relational approach to human rights law emphasizes the ethical connections between people across time, space, politics, and nature, transforming the individual from the object of protection to an actor and a duty-bearer vis-à-vis others.Footnote ²⁵ Solidarity can take the form of self-actualization, extending existing support structures created by communities on the receiving end of domination to include migrants.Footnote ²⁶ This self-actualization can contribute to a new horizon of transformative solidarity—as a source of mutual obligations.Footnote ²⁷ Through collective interventions, activists, lawyers, and scholars can commit to a kind of solidarity that aims to dismantle the economic, political, and social structures that construct migration injustice, offering emancipatory alternatives.

Lessons and Emerging Trends: A Transformative Horizon

From this symposium, a picture emerges of the transformative potential of solidarity in our understanding and (re)configuration of the relationship between migration and law. Law can generate oppression and is a key source of de-solidarity in many parts of the world. Yet solidarity actors can challenge existing legal frameworks, contesting states’ interpretations and enforcement actions, opening up new emancipatory meanings, spaces, and tools that facilitate the fulfillment of migrants’ rights, enabling their full subjectification.Footnote ²⁸ Solidarity—in both theory and praxis—expands law's horizons in unexpected ways, offering underexplored routes toward the realization of justice. Nonetheless, the relationship between the two is complex. There are risks in solidarity's exclusionary side, in its malleability, and conceptual untidiness. Solidarity is heavily contextual, action-dependent, and co-constituted through praxis, and as a result is fluid and difficult to capture in fixed legal definitions.

Solidarity is multi-faceted and pluri-dimensional. These essays identify it as an instrument and a vehicle, and at the same time, a value, a principle, and an ethical vector of individual and collective behavior. Solidarity bridges freedom-based and equality-based conceptions of rights and justice, linking individual and collective dimensions, introducing a politics of care that would otherwise be lacking. The essays thus uncover solidarity's complexity and richness as a core contribution.

Our collective purpose is to open a line of communication that enables different voices and perspectives on solidarity, from within law, across disciplines, and civil society, to hear and learn from one another. We do not prejudge any meanings or understandings. The objective is to reflect as a collective on the ways forward, acknowledging the value of contributions from different domains. This goal is directly reflected in the structure we adopt in this project as a whole, intended as an experimental space for conversation and exchange between social scientists, legal scholars, and activists. The method is intended to build trust, community, and to foster the joint (solidaristic) production of new approaches. Its novelty resides in its trans-disciplinary approach to collective meaning-making and cooperation for transformative purposes. Through it, scholars gain insights from ongoing solidarity communities and collective mobilizations, and activists build networks, gain visibility, and contribute to solidarity's theorizing as co-formulators. This approach enables normative (self)reflection, collaboration, and mutual understanding across fields of action. It pushes contributors to theorize solidarity as we actually practice it. Drawing from this experience, we believe that new theoretical contributions should integrate praxis, engaging deeply with how solidarity is practiced, lived, experienced, and invoked on the ground. The tensions and contradictions around solidarity, and their impact on its theorization and translation into law and policy, should be further explored in this (solidaristic) way.

The process of mutual engagement launched in this symposium aims to create a foundation for prospective efforts to chart new terrain around solidarity and migration. This should enable future (solidaristic) research to refine and co-produce knowledge, drawing from law, theory, and praxis to crystallize an emancipatory vision of migrant solidarity, undoing systems of exclusion, hostility, and violence.