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Volume 2 of The Cambridge History of Global Migrations presents an authoritative overview of the various continuities and changes in migration and globalization from the 1800s to the present day. Despite revolutionary changes in communication technologies, the growing accessibility of long-distance travel, and globalization across major economies, the rise of nation-states empowered immigration regulation and bureaucratic capacities for enforcement that curtailed migration. One major theme worldwide across the post-1800 centuries was the differentiation between “skilled” and “unskilled” workers, often considered through a racialized lens; it emerged as the primary divide between greater rights of immigration and citizenship for the former, and confinement to temporary or unauthorized migrant status for the latter. Through thirty-one chapters, this volume further evaluates the long global history of migration; and it shows that despite the increased disciplinary systems, the primacy of migration remains and continues to shape political, economic, and social landscapes around the world.
In this chapter I delve into the rules of international law in their evolution and dynamic understanding, focusing on the principle of volitional naturalization. To do so, I take the mass acquisition of the Comorian nationality by the Middle Eastern Bedoon as an example of a factual constellation, which could potentially be unlawful under international law, ending with a call for ‘disciplining’ investment citizenship.
One can hope that the convening of the Tokyo Olympics will be a cause for global celebration. Tokyo could prove a focal point for international solidarity, a moment of relief and release after all of humanity faced down an insidious, invisible, and largely indiscriminate attacker. Unified as we otherwise may be, athletes will still come to the Games as representatives of nation-states. That may be an unavoidable organizing principle. Less justifiable will be the requirement that athletes be nationals of the states they play for. Under the Olympic Charter and the rules of particular sporting federations, athletes are subject to a non-state nationality regime that restricts the capacity of individuals to compete for countries for whose delegations they would otherwise qualify. This regime looks to maintain the putative integrity of Olympic competition by maintaining the unity of sporting and sociological national identity. But that legacy of the twentieth century no longer works in the twenty first. Nationality and associated criteria for participant eligibility undermine the autonomy of athletes and the quality of participation. The rules can no longer guarantee any affective tie between athlete and nation, instead arbitrarily enabling some, but not all, to compete on the basis of citizenship decoupled from identity. We don't require that athletes playing for our professional sports teams hale from the cities they represent. There's no reason why we need to require more of our Olympic athletes.
In Trump v. Hawaii, the United States Supreme Court upheld admissions restrictions imposed by the Trump administration on nationals of certain countries for putative security reasons. In so doing, the Court's opinion reaffirmed judicial deference to the president on matters relating to immigration. Although the decision marked a Trump administration victory at the end of a protracted judicial clash, the lower courts are likely to continue operating as a check on aggressively restrictionist policies pursued by the administration on other fronts.
Part I of this symposium on framing global migration law introduced broad conceptual parameters of a new field, looking back to its international law roots and forward to a new orientation beyond the strictures of refugee law. Part II looks to situate global migration law along a range of theoretical dimensions. Jacqueline Bhabha establishes the continuities of human movement in a historical context, modern and premodern. Far from representing a radical departure, the current migration “crisis” is consistent with massive migrations over the ages. Tendayi Achiume considers migration through the lens of colonization and decolonization. Out-migration from Europe was a core economic element of the colonization project; Achiume suggests that contemporary migration from former dependencies to metropolitan powers will correct co-dependencies that continue to advantage postcolonial powers. Focusing Achiume's lens on the problem of human trafficking, Janie Chuang complicates the binary depictions of economic migration that underpin contemporary international law. She suggests that global migration law's grounding in a migrant-centered perspective could help state actors to understand the structural causes of modern-day exploitation, enabling a shift from a crime control approach to a human mobility paradigm.
When I started teaching international law more than twenty years ago, it was
still possible to be an international law generalist. In the U.S. legal academy,
the likes of Henkin, Schachter, Franck, and McDougal covered the full range of
public international law subjects. (Some even managed to stay on top of private
international law, too.) Today, being an international law generalist is
impractical; it's simply too difficult to keep current with the breadth
of international law. From the scholar's perspective, it's a case
of “be careful what you wish for.” A generalist international law
orientation used to be possible because there was so little of it, both on the
ground and in the scholarship. Those mid-century saplings—the various
distinctive fields within international law—have grown to mature oaks,
and expert knowledge of their many crevices and branches is beyond the capacity
of any single observer. Not only does international law defy individual mastery,
but the level of specialization now makes it difficult to talk across these
different areas. My colleague in international criminal law might as well be a
domestic family law person for purposes of professional points of connection. We
both attend the ASIL Annual Meeting, but we no longer really speak the same
language.
These have been heady times for those interested in foreign relations law. The last twenty years have seen the field transformed. In the 1970s and 1980s, Vietnam had triggered significant attention on constitutional war powers, but that interest was more political than scholarly. Other foreign relations law issues were debated only at the margins. The Restatement (Third) supplied a largely unchallenged conventional wisdom in the area, even if some of its main points were more aspirational than descriptive. The courts had long been missing in action; though they had been active in the first century or so of the Republic on international law and foreign relations law issues, probably the most important Supreme Court ruling in the area from the second half of the twentieth-century merely served to confirm the judicial timidity. On many of the most important issues of foreign relations, sparse judicial precedents (such as they existed) had no more than oracular application to contemporary questions. Other actors nonetheless managed to achieve constitutional equilibria with little help from the courts or scholars. The second half of the twentieth-century was characterized by a remarkable level of constitutional stability regarding the allocation of foreign relations powers.
Edited by
Fiona Jenkins, Australian National University, Canberra,Mark Nolan, Australian National University, Canberra,Kim Rubenstein, Australian National University, Canberra
Edited by
Fiona Jenkins, Australian National University, Canberra,Mark Nolan, Australian National University, Canberra,Kim Rubenstein, Australian National University, Canberra
Non-state power is now a fact of international life. Nonetheless, the role of nongovernmental organizations (NGOs) in international relations remains undertheorized. A burgeoning social science literature relating to NGOs has emerged in recent years. However, this work tends to be narrow in scope, confronting discrete elements of NGO activity. This is unsurprising, given the novelty of much of the activity and the need for descriptive accounts in a range of contexts. International relations (IR) theorists have been late to the party. To the extent that IR theorists have attempted to situate NGOs in international process, for the most part, it has been relative to the state. This approach fails to recognize the consequentiality of NGO activity not directly implicating state action.
This chapter sketches a systematization of NGO activity relating to international relations. It describes four primary pathways for the exercise of NGO power: through and against states, international organizations (IOs), firms, and each other. Only by situating NGO power relative to state and non-state entities does the breadth and novelty of the NGO role in today's global decision-making come into full relief.
Will international law colonize the last bastion of sovereign discretion? As a matter of traditional doctrine, international law has had little to say about the citizenship practices of states and the terms on which states determine the boundaries of their memberships. Through much of the Westphalian era, states have been essentially unconstrained with respect to who gets citizenship and on what terms. Historically, citizenship status has been considered a matter of national self-definition, jealously insulated more as a matter of reflex than justification. Nationality has been equated with identity, in most cases coinciding with ethnic, religious, or other sociocultural community markers, which, in turn, have more or less mapped onto territorial spaces.