Travel Plans: Border Crossings and the Rights of
Transnational Migrants
http://www.law.harvard.edu/students/orgs/hrj/iss18/kapur.shtml
Ratna Kapur
We are the people you never see.[1]
[Y]ou begin to give up the very idea of belonging.
Suddenly, this thing, this belonging, it seems like some long, dirty
lie.[2]
Come on, mohajir! Immigrant. . . . Pack-up double
quick and be off to what gutter you choose.[3]
I. Introduction
Dirty Pretty Things,
a compelling, cross-cultural thriller from the United Kingdom, tells
the complex stories of illegals, semi-illegals, and the other side
of London life. These lives are far from the story of the good old
English chap, the ritz and glitz of Oxford Street, the grandeur and
chimes of Big Ben, and the formal sterility of Buckingham palace. It
is the story of foreigners forced to make a living in the shadows of
the British capital—the busboys, taxi drivers, chambermaids,
porters, hookers, and hospital orderlies who feed, clean, and
sexually service the rich and powerful, keeping London looking
pretty, or at least glisteningly sterile. The film foregrounds the
stories of Okwe, a Nigerian doctor who has been run out of his
homeland and is an undocumented worker, and Senay, a Muslim Turkish
chambermaid, granted asylum, but without the right to work. Both
have taken up employment in a West London hotel run by a Spaniard,
Señor “Sneaky.” It is the sort of place where mundane underground
businesses like drug dealing, sex work, and more sinister ones—like
organ trafficking—take place. Senay dreams of going to New York, a
city of fantasy and wonder, and is willing to sell her body and
possibly even her kidneys to provide her with the means to pursue
her dream. Okwe just wants to get back home to his wife and
daughter.
The film represents the plight of a besieged
community of illegal immigrants from a variety of countries, and
delves into the complexities of the existence of the subaltern life
and the life of the “Other” who has crossed borders, willing to take
on the considerable risks that accompany such movements, especially
movements that are illegal, stigmatized, and even criminalized. The
film serves as a point of entry into the central issue addressed in
this Article: how the transnational migrant subject is addressed
through a spectrum of legal rules and criteria designed to question
her legitimacy at the point of crossing borders. I expose how the
complexities and layering of migrant existence are rolled and
flattened through a regulatory apparatus that fails to engage with
the broader transnational processes that produce the global demand
for migrants. International and domestic laws are serving as sites
where the emergence of the transnational migrant on the global stage
is being resisted and her human rights compromised. These legal
interventions are constructed along frameworks rooted in the
boundaries of difference, the sovereignty of the nation-state, and
the myth of the liberal subject, which all fail to address the
challenges posed by the transnational migrant.
I discuss three responses to the transnational
migrant that characterize some of the legal interventions. The first
response is reinforcing difference through categories such as gender
and race, which regard these traits as immutable and unalterable and
subject them to subordinating and paternalistic legal regulations.
The second response involves the assimilation of the Other, which
forces conformity to cultural and social norms partly through the
performance of a “cultural strip.” Finally, there is the perception
of the transnational migrant as a threat—a dangerous and
contaminating force—to be excluded either through incarceration or
elimination. These three approaches are reflected in the three
situations that I set out in this Article.
First, I briefly examine how difference is reinforced
in my discussion of the legal regulation of women who migrate for
work, including sex work. Second, I examine the assimilationist move
in the context of the legal responses to transnational migrants in
countries that have adopted new emotional, cultural, and citizenship
criteria to determine eligibility for citizenship and immigrant
status. I discuss the recent initiatives in the U.K. and how these
expose a neo-colonial anxiety about the Other and a desire to
prevent the erosion of the social and cultural cohesion on which
such societies are ostensibly built. In the third example, I examine
how the global response to terrorism in and through the “War on
Terror,” which promotes fear of the Other, has impacted Australia’s
legal response to refugees and asylum-seekers fleeing persecution
and conflict.
The diverse responses to the transnational migrant
subject are not clear-cut and distinct measures: they frequently
overlap. These subjects are at times represented as victims and at
times as perpetrators capable of the most terrifying violence. The
common element in the examples I discuss is the attempt to examine
and respond to border crossings by transnational subjects along the
rigid binaries of “us” and “them,” and domination and subordination.
These binaries undermine the human rights of the transnational
migrant subject and fail to address the complex, fragmented, and
blurred realities of our transnational world.
II. The “Other” Side of Universality
There is already considerable scholarship setting out
how law’s claim to truth resides in the ideal rather than the actual
practice of law.[4] Although law continues to fall short of its
ideal, it continues to situate itself as an authoritative discourse,
its authority derived in part through scientific legal method and
rigor, and its projection as a unified discipline with an internally
coherent logic that is transcendent and divorced from the world.[5]
In this section, I examine how the legal responses to the
transnational migrant reflect a theoretical tension between
assumptions about law as an objective, external, neutral truth, and
the exclusionary potential of legal discourse. I illustrate how
legal discourse actually constitutes the transnational migrant
subject and justifies her exclusion from certain rights and
benefits. In developing this argument, I borrow from the insights of
postcolonial theory and the subaltern studies project.[6]
Throughout
this Article I use the term transnational migrant subject, which
refers quite specifically to the subject who crosses borders and
occupies a subaltern position. The subaltern studies project regards
hegemonic history as part of modernity’s power/knowledge complex,
which in the context of colonialism was deeply implicated in the
“general epistemic violence of imperialism.”[7] It reads the
official archive against the grain and focuses on “listening to the
small voice of history,” including the voices of peasants, women,
and even religious, sexual, and racial minorities.[8] In the context
of the transnational migrant subject, the subaltern project
challenges the traditional assumptions about universality,
neutrality, and objectivity on which legal concepts are based,
exposing how law produces exclusions and contributes to the
construction of the transnational migrant subject’s subaltern
location.
Subaltern studies and postcolonial scholarship have
exposed how the identity of the West and the European has been
constructed in opposition to an Other. In the context of the
transnational migrant subject, this opposition exposes an
incommensurable tension between the West’s claims to universality
and inclusion, which continue to inform traditional assumptions
about law, and the politics of exclusion of the Other from the
project of universality.[9] These exclusions, whether based on
gender, sexual status, race, ethnicity, or religion, are constructed
along what are perceived to be “real differences.” The law produces
the binaries of “us and them,” “here and there,” and “civilized and
uncivilized” by representing the migrant subject as distinct and
different. These distinctions become the lynchpin for determining
who to include and who to exclude when it comes to formulating legal
responses to those who cross borders.
Modernity posits a set of claims to universal truth
about equality, citizenship, and representation in law. Yet these
universal concepts have continuously been exposed as resting on
exclusions, as in the context of slavery, apartheid, empire, and
gender discrimination. For example, in the context of empire,
colonialism has been coterminous with modernity.
While Europe was developing ideas of political
freedom, particularly in France, Britain, and Holland, it
simultaneously amassed vast empires where such freedoms were either
absent or severely attenuated for the majority of native
inhabitants.[10] There were two primary ways in which it was
possible to legitimize this relationship and reconcile the freedoms
associated with liberalism with the exclusionary impact of
colonialism. First, reconciliation involved linking the capacity to
reason with adherence to some notion of a universal natural law,
applicable to all.[11] These norms were premised on European
practices to which the colonial subjects had to conform if they were
to avoid sanctions and achieve full membership.
The second way in which to reconcile domination with
freedom and equality was through the discourse of difference, in
which the eligibility and capacity for freedom and progress was
biologically determined, and colonial subjugation legitimized as the
natural subordination of lesser races to higher ones.[12]
The purportedly universal rights of man could be
denied to those not considered to be men or even human. Liberal
discourses of rights, inclusion, and equality could be reconciled
with the colonial policies of exclusion and discrimination only by
presuming absolute differences between different types of
individuals.[13]
A similar logic justified the continued subordination
of women, where women were understood as different from
men—specifically, as weaker, subordinate, and in need of
protection.[14] Curiously, in the colonial relationship, gender
difference was conflated with cultural backwardness, where the
native treatment of women was used in part as a justification for
colonial intervention and the civilizing mission.[15] The British
Empire was quite consistently able to position itself as the
defender of women’s rights in the colonial context without
fundamentally changing its own position on gender difference and the
representation of women as the weak and subordinate sex. The British
continued to take the existence of gender differences as natural and
inevitable. And difference was partly constructed through the
capacity to consent and the capacity to reason. The Other was deemed
unfathomable, inscrutable, distant, and removed, demonstrating that
this subject was civilizationally backward and savage or
infantile.[16] Colonial subjugation became one way to rectify past
deficiencies, and the civilizing mission of imperialism became
justified in societies perceived as stagnant and mired in the
stranglehold of custom. The Empire was the “engine that tows
societies stalled in their past into contemporary time and
history.”[17] It was a necessary precondition to progress.
Law became one site at which to deal with difference
and legitimize the pursuit of the civilizing mission.[18] The native
was entitled to certain rights and benefits to the extent that he
could reinvent himself as an Englishman and successfully perform the
mime.[19] Otherwise, “backwardness” and lack of “civilizational
maturity” were regarded as limitations. They were deficiencies to be
tolerated, even if they could not be altered, or to be eliminated if
they posed too great a threat.[20] Furthermore, this deficiency was
in part emphasized through a focus on the natives’ treatment of
their own women, even as the colonial powers themselves accepted
gender difference as intrinsic and immutable.
Thus, while there was an assumption that certain
political ideals—liberty, equality, and fraternity—were universal,
these ideals seemed to stumble and falter at the moment of their
encounter with the unfamiliar, the Other. One response to a world
where there were so many different ways of organizing social and
political life was simple: colonialism. Today, assumptions that
underscore these “universal” values meet with some of the same
difficulties as they encounter difference and unfamiliarity in a
postcolonial and increasingly transmigratory, transnational
world.[21] Universality is always accompanied by what Denise da
Silva evocatively describes as “the other side of universality.”[22]
This “moral and legal no man’s land, where universality finds
its spatial limit,” is built upon the foundation of
difference.[23]
These
responses to the Other are still present in the contemporary moment
in the context of the legal treatment of the transnational migrant
subject. I examine these responses through a sampling of legal
interventions and unpack the assumptions about the Other and
difference on which they are based. The discussion exposes the
failure to recognize the global movement of people as a part of the
globalization process, and how legal interventions, which continue
to operate along the dichotomies of “here and there” and “us and
them,” are actually contributing to the production of a clandestine
migrant mobility regime.
A. Re-entrenching the Native Subject
Over the
past several years, sex workers (male, female, and transgendered),
their families, and their support communities have crossed
international borders and converged on different cities in India to
celebrate the International Sex Workers’ Rights Day on March 3.[24]
At the epicenter of their debates and protests has been a challenge
to the anti-trafficking initiatives being promoted by Western and
South Asian countries, feminists, and human rights groups.[25] These
communities argue that such measures have resulted in targeting of
migration from the south, promotion of a highly conservative moral
agenda, and a denial to sex workers and other migrants of their
right to work, family, and mobility.[26] I discuss how
anti-trafficking initiatives assume that persons in situations of
trafficking, especially women, are “victims” incapable of choosing
to cross borders, and how they fail to address the push factors that
compel such “unsafe” movements.[27] Instead, these responses focus
on border controls and the prosecution of “traffickers,” who range
from transport agents to the “victims’” families who consent to the
movement. They are designed to discourage women’s mobility and to
stigmatize her (Third World) family, conveying a simple message:
Keep the “native” at home. The anti-trafficking initiatives
reproduce assumptions about women as passive, incapable of
decision-making, and in need of protection. They also fail to
address the concerns of anti-trafficking advocates, as they are
frequently used merely as a façade to deter the entry of certain
categories of migrants or to clean up establishments within the sex
industry.[28] The anti-trafficking framework has not succeeded in
detaching itself from these hidden agendas, and consequently it has
proven to do little good for the trafficked person and great harm to
migrants and women in the sex industry.[29]
Statistics
in the area of trafficking are unavailable primarily due to the
imprecise nature of the term “trafficking,” the lack of systematic
research in this area, and the clandestine nature of the activity.[30]
In addition, statistics are sometimes cited without identifying any
substantiating research. For example, the Coalition Against
Trafficking in Women—Asia-Pacific sets out the numbers of women
trafficked in several countries, often without citing any research
or source for their statistics.[31] Similarly, the 1995 Human Rights
Watch report on trafficking between Nepal and India states that
“[a]t least hundreds of thousands, and probably more than a million
women and children are employed in Indian brothels.”[32] Human
Rights Watch further states in its 1993 report on trafficking
between Burma and Thailand that there are an “estimated 800,000 to
two million prostitutes currently working in Thailand.”[33] Neither
report, however, provide any sources for its statistics.
Kamala Kempadoo has stated that there are often
extreme variations in the estimates of the number of women in
prostitution in Asia. She questions the veracity of these figures,
arguing that such discrepancies are grounds for questioning the
reliability of the research.[34] Despite such criticism, in the
context of sex work, prostitution, and the conflation of these
activities with trafficking, standards are compromised and such
figures are cited without any question.
These questionable statistics reinforce confusion
about trafficking, migration, and sex work. In contemporary
discourse, human trafficking has come to be interlinked with
migration (mainly illegal), clandestine border crossing, and
smuggling of humans. On a parallel plane, trafficking in women and
girls is conflated with their sale and forced consignment to
brothels as sex workers. This conflation of trafficking in persons
with various manifestations of migration and mobility on the one
hand, and with prostitution and sex work on the other, lies at the
very core of the confusion underpinning the contemporary discourse
on the global, national, and regional trafficking of women and
girls.
B. Conflating Migration With Trafficking
In 2000, the United Nations adopted an international
definition of trafficking. The Protocol defines trafficking as
follows:
“Trafficking in persons” shall mean the recruitment,
transportation, transfer, harbouring or receipt of persons, by means
of the threat or use of force or other forms of coercion, of
abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of payments
or benefits to achieve the consent of a person having control over
another person, for the purpose of exploitation. Exploitation shall
include, at a minimum, the exploitation of the prostitution of
others or other forms of sexual exploitation, forced labour or
services, slavery or practices similar to slavery, servitude or the
removal of organs.[35]
The definition marks an important development insofar
as it shifts toward a newer, relatively more widely acceptable and
inclusive definition of trafficking. Since the definition is very
recent, its impact will only be realized once it begins to be
applied and tested. A striking feature of the definition is that it
includes trafficking for purposes other than prostitution, such as
for forced labor, forced marriage, and other slavery-like practices.
There is also some acknowledgement that trafficking is a problem of
human rights and not a law and order or public morality issue
related to prostitution.
However, the new definition is not fully coherent and
still conflates trafficking with migration and prostitution. Women
move and are moved, with or without their consent, for a variety of
reasons.[36] They frequently find their way into the job market as
domestic helpers or sex industry workers, partly because these are
the largest available enclaves in the job market of receiving
countries.[37] The definition of trafficking in the Protocol fails
to clearly distinguish between trafficking and voluntary consensual
migration, often conflating women’s migratory movement with
trafficking.[38] A number of states parties to the Protocol have
also interpreted it, both consciously and inadvertently, as
foregrounding prostitution as the main site of trafficking,
relegating the issue of the consent of the “victim” to
irrelevance.[39]
Additionally, the Protocol does not require states
parties to provide any measures of redress, assistance, or service
to individuals who have been trafficked, or to their families. In
all these ways, the trafficking definition delegitimizes the woman’s
cross border movement.
The
various tensions that characterize the anti-trafficking debates have
become evident in the Protocol and its definition.[40] Equating
trafficking with migration has led to simplistic and unrealistic
solutions: in order to prevent trafficking, there has been a
conscious or inadvertent move to prevent altogether the migration of
those who are deemed vulnerable to exploitation.[41] Even when
curbing migration is not a stated focus of a program, there is an
inadvertent tendency to try to dissuade women and girls from moving
in order to protect them from harm. Anti-trafficking measures are
frequently made applicable to “women and girls,” thereby failing to
accord women a separate identity as adults and confer rights that
flow from that status, including the right to choose to move and to
control one’s life and body. This language also emphasizes women’s
role primarily as caretakers for children and fails to consider that
their roles have altered. A woman’s identity as the sole supporter
of dependent family members, and hence as an economic migrant in
search of work, is completely overlooked by these legal initiatives.
Conflating trafficking with migration reinforces the assumption that
women and girls are incapable of decision making or consent, and are
therefore in need of constant male or state protection. The logical
consequence of such an assumption is the curtailment of a woman’s
right to movement or right to earn a living in the manner she
chooses. Indeed, policies that appear to be initiated for the
benefit of women often contribute to further victimization and
infantilization of female migrants.[42] The construction of women
who move (or are moved) as victims of a web of criminal networks
lies in tension with the counter-narrative that regards the movement
of labor as part of the globalization process in which the emergence
of human trafficking and smuggling networks are parallel responses
to the migration phenomenon that nation-states, especially in the
global North, refuse to address other than as an issue of
immigration or criminality.
The approach that arises out of constructing women as
victims delegitimizes women’s movement, while the problem of
trafficking—the ostensible purpose of these measures—never gets
resolved. Curbing migration does not stop trafficking, it merely
drives the activity further underground, making it more invisible.
Borders cannot be made impermeable, and stricter immigration
measures result in pushing the victims further into situations of
violence and abuse. As a result, women who migrate are pushed into
further dependence on an informal and illegal network of agents and
rendered even more vulnerable to economic and physical abuse,
exploitation, and harm.
International law has constructed a response to
“trafficking” that fails to draw clear conceptual distinctions
between migration and trafficking. As a result, migration becomes
equated with trafficking, which also means that the number of
victims of trafficking comes to include the number of those who have
migrated voluntarily. This logic operates particularly in the case
of adolescent and adult female migrants, rather than in the case of
male migrants. As a result, surveys on trafficking in “risk-prone”
and “affected” districts, such as various South Asian countries, are
conducted using flawed methodology. If women or girls are absent
from a village or town, they are assumed to be “missing persons”
and, therefore, trafficked. It is a logic that has resulted in the
viewing of all consensual migrant females as trafficked individuals.
Anti-trafficking advocates also conflate women’s
cross-border movements with sex work or prostitution, producing at
least two contradictory responses.[43]
Collapsing
the process with the purpose equates the abuse and violence that a
woman may experience in the course of transport with the ultimate
purpose of her journey. Many anti-trafficking measures are
invariably anti-prostitution or intended to curtail sex work.
Prostitution as the mutually exclusive purpose of trafficking is an
untenable assumption because not all victims of trafficking are
prostitutes nor have all prostitutes been trafficked. At the same
time, if women are deemed to have participated in the process of
trafficking, they are immediately recast as immoral subjects or
criminals undeserving of legal protection.
Restrictive migration and immigration policies of
countries of transit and destination have decreased the
possibilities for regular, legal, and safe migration throughout the
world. This phenomenon has resulted in the growth of a clandestine
migrant-mobility regime in which traffickers and smugglers
facilitate the movement of migrants, often providing false travel
documents and identification papers for them. It is a regime born
from people’s desire and need to migrate produced, in part, by the
demand for cheap exploitative labor across borders. The
anti-trafficking legal initiatives fail to recognize and respect the
rights of transnational migrant subjects such that women’s agency
and the rights of their families in the course of their movement are
all but forgotten. These initiatives continue to address women
(especially from the global South) as victims, infantilizing them as
incapable of rationally choosing to migrate in a clandestine
fashion, although a bevy of factors—including market demands and the
lack of safe migration options—can make clandestine migration
methods a rational, viable option.
Anti-trafficking initiatives also tend to criminalize
women and their families by regarding families as part of the
trafficking chain, failing to recognize that women move in part to
seek better economic opportunities to support their families.[44]
Although the women migrating on the behalf of their family can still
be subject to subtle and forceful coercion from their family
members, the anti-trafficking initiatives assume criminality
indiscriminately for all female migrants. Furthermore, by invariably
associating trafficking with sexual exploitation, women who move are
implicitly suspected of crossing borders for the purposes of sex,
which stigmatizes their movement. As such, women and their movement
are viewed through the lenses of criminality and stigma, and the
woman herself is rendered both a victim as well as an immoral
subject.
C. Assimilation and the Cultural Strip
Almost the same, but not quite . . . almost the same,
but not white.[45]
[M]ost migrants learn, and become disguises.[46]
The global flow of people across borders and within
borders is generated by a plethora of reasons: the reconfiguration
of the global economy, displacement and dispossession of
marginalized populations, the desire to provide education to
children, the awareness through consciousness-raising that there are
better options elsewhere, armed conflict, and, of course, the basic
human aspiration to explore the world.[47] The global patterns of
economics and trade have increased the demand for low wage labor as
well as the demand of poor countries for remittances from immigrants
in the global North that will assist in social welfare that the
state is neither able nor willing to provide.[48] The World Bank’s
report on Global Development Finance 2003 estimates that migrant
remittances to developing countries reached almost $80 billion in
2002. Poorer countries thus have little interest in controlling
outward movement, whether legal or clandestine.[49]
There are
several human rights documents and provisions in international and
human rights law that address some of the harms and abuses to which
migrants may be exposed, such as slavery, forced labor, and debt
bondage.[50] The recently ratified International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their
Families (“CMW”) is the first international convention to address
the issue of irregular or illegal migration from a rights
perspective. It affords some recognition and substantial rights to
migrants and undocumented workers.[51] The primary purpose of the
Convention is to protect the human rights of legal and illegal
migrants and their families, and to ensure there is no arbitrary
interference with their rights to liberty and security.[52] The CMW
imposes positive obligations on the state to provide housing and
other benefits to migrants, both documented and undocumented.[53]
Despite the rights provided under the CMW, it suffers from a number
of shortcomings, such as a failure to address the obstacles posed by
immigration laws and restrictions.[54] Additionally, as of this
writing, the treaty has not been ratified by a single country in the
global North.
At the same time, there is a resistance on the part
of states to address the transnational migrant within the framework
of international and human rights law. The primary response of
states to the global movement of people has been to enact new
citizenship and nationality laws to enable transnational migrants to
be part of the universal project of rights and acquire legitimacy
through the process of assimilation. However, these initiatives are
also being promoted alongside tighter immigration laws and
procedures that address immigrant-status migrants and increased
border control mechanisms that target those who refuse to
assimilate.
Transnational movements are challenging nation-states
and their borders, and reconfiguring the map of national, political,
and cultural identity. The need to secure the sovereign nation-state
and the sovereign subject results in an unwillingness to countenance
such a challenge. New laws enacted to defend and consolidate the
cultural, social, and national cohesion of individual states—through
a combination of assimilating criteria and exclusionary cultural
boundaries—reveal continuing neo-colonial anxieties about the Other.
The U.K. Government’s response to this neo-colonial
anxiety, as well as to the racial tensions that gripped the country
in the summer of 2001, is the government’s new policy on immigration
and citizenship set out in its White Paper entitled Secure
Borders, Safe Haven.[55] Consistent with the policy of pursuing
tighter immigration measures rather than addressing the anxieties
and
national security issues posed by the transnational
migrant within the framework of international and human rights law,
the U.K. government has not ratified the CMW and asserts—though not
uncontestedly—that there is inevitably a tradeoff between migrant
rights and immigration controls.[56] The national immigration
measures target the transnational migrant subject through new
cultural, emotional, and citizenship criteria. Most of these
criteria have found their way into the British Nationality,
Immigration, and Asylum Act of 2002.[57]
Secure Borders, Safe Haven
is based on two primary objectives. The first is to build social
cohesion and a sense of British identity in “an increasingly diverse
world.”[58] The government considers it critical to ensure that
local residents feel secure in their own identity and community and
that those who want to settle in the U.K. “develop a sense of
belonging, an identity and shared mutual understanding, which can be
passed from one generation to another.”[59] The second is to address
economic considerations by ensuring that people who want to work in
the United Kingdom can do so without entering the country through
illegal routes.[60] These two objectives are pursued under a policy
of “managing migration.”[61] Managing migration seeks to integrate
migrants into the British economy and society in ways in which the
existing population will welcome them. The migrants are to be
“managed” in their literal crossing of borders as well as in their
identity construction once in the U.K. Through new nationality,
citizenship, and integration policies, the migrant is reshaped in
the British mold. As Home Secretary David Blunkett has asserted, the
migrants should be trained to “uphold common values and understand
how they can play their part in our society while upholding our
status as subjects of [Her Majesty] The Queen.”[62] Blunkett
therefore proposes that people who want to become U.K. citizens take
a compulsory English language test and an exam on the ways of
British life, British society, and British institutions.[63]
Migrants would also be required to take a citizenship pledge.[64]
This move toward assimilation requires a “cultural strip.”
As part of a “cultural strip,” cultural practices
that are perceived as being contrary to British tradition and values
must be rooted out. For example, Secure Borders, Safe Haven
targets “bogus marriages,” defined as marriages entered into solely
for the purpose of bringing friends and relatives into Britain
through one of the easiest routes still permitted by U.K.
immigration rules.[65] According to the definition, bogus marriages
are entered into for “wrong” (not personal or romantic) reasons.[66]
There is a normative bias in Blunkett’s focus on “arranged”
marriages that implies such arrangements are not real marriages.
Moreover, while he recognizes the desire on the part of parents to
choose partners of a similar cultural background for their children,
he expresses the hope that eventually such parents will seek to
choose such partners from within their own settled communities in
Britain. He states that only certain marital norms will be
acceptable in the U.K., and that polygamous or forced marriages will
not be tolerated.[67] However, his proposals create a blurring of
distinctions between forced marriages and arranged marriages,
especially when such marriages are arranged between a U.K. citizen
and a person living abroad.
Blunkett has proposed the introduction of a
“probationary period” of two years for new marriages before allowing
the couple to apply for settlement in the U.K.[68] During those two
years the couple would have to support themselves without recourse
to public funds, a hardship Blunkett claims will “not greatly
inconvenience or penalize those in genuine relationships.”[69] The
subjection of the relationship to some form of economic hardship
over the course of two years would, according to the Home
Secretary’s view, be unsustainable in the context of “sham
marriages”: “it would be harder to sustain a relationship for this
longer period with a duped partner and it is more likely that, when
questioned or interviewed, the lack of a genuine and subsisting
relationship will become apparent.”[70] These recommendations have
yet to be explicitly enacted into law. They nevertheless serve as a
telling illustration of some of the cultural and gendered
assumptions that the government retains with respect to foreigners,
assumptions that will no doubt influence the decisions of those who
evaluate immigration applications.
The
Blunkett proposal to introduce new regulations into the
relationships of immigrant populations requires couples with a
migrant spouse to demonstrate instrumental, emotional, and cultural
components to prove the “authenticity” of their marriages. The
instrumental element measures the strength and genuineness of the
marital arrangement as contingent upon the length of time a couple
remains together: the longer the couple stays together, the more
legitimate the arrangement. The emotional element quite specifically
requires proof of love. In other words, the proposal targets
marriages that may be consensual, but that are entered into for
reasons other than romance or love. Yet not all such “non-genuine”
arrangements are targeted. The proposal quite specifically hones in
on arranged marriages, presuming that they are less genuine because
they are not based on “sincere” emotions, and hence more likely to
be based on impermissible motives such as immigration benefits.[71]
Finally, the cultural element is based on the idea
that the practice of arranged marriages is a universal one among the
people from the Indian subcontinent. Not only is this an inaccurate
perception, it undermines the understanding of culture in the
postcolonial context as heterogeneous, fluid, and malleable.[72]
Conjugality was a contested site in the colonial encounter. Arranged
marriages constituted part of the political and cultural
authenticity move against the British colonial power during its
period of rule over the Indian subcontinent. Hindu nationalists
declared that arranged marriage was the site of pure Hindu culture
beyond the reach of colonial legal intervention.[73] My argument is
not intended as a defense of arranged marriages. It is to highlight
how marriage has been, and continues to be, entered into for
political, cultural, and material reasons, and not exclusively for
emotional ones. However, in an effort to curtail illegal migration,
the British White Paper has singled out a legal consensual
arrangement and subjected it to an implicit standard that only
normalizes marriages that are “love”-based. Arranged marriages, as a
result, are draped in a cultural cloth and cast as alien, insincere,
and deceptive.
The proposals in the White Paper disregard the fact
that marriage provides institutional access to a wide array of state
benefits, and the right to settle is only one of them. The proposals
are based on a static and naturalized understanding of marriage,
whereas individuals marry for a variety of reasons both in and
outside of Britain. People “here” and “there” marry for love,
economic status, title and privilege, procreative purposes, as well
as for the fact that the marital arrangement is the only
state-recognized arrangement that is accorded maximum legitimacy by
the state and access to state benefits, rights, and privileges.
People opting for arranged marriages are motivated by all or some of
these considerations and cannot be assessed exclusively from the
perspective of “love” and other limited normative standards.
The White Paper proposals operate along a cultural
divide that reinforces cultural stereotypes about the Other as
different and inferior. The Home Secretary expresses the need for
future generations of immigrants to grow up “feeling British.”[74]
Yet this “feeling” is assumed and never examined. It signals a
return to a “crude and flawed mythology of a mono-racial, culturally
uniform British identity in which non-white people’s presence is
tolerated—and even then only conditionally.”[75] The “British”
identity is neither defined nor explained, but it does, according to
the Home Secretary, involve a process of integration through
adopting British “norms of acceptability,” studying British history
and culture, and embracing “our laws, our values, our
institutions.”[76] Part of being British includes more than simply
not tolerating practices unacceptable in the United Kingdom, such as
enforced marriages. It involves a more aggressive assimilation move,
which seeks in part to press the Other into conforming with the
prevailing sexual, marital, and cultural norms in Britain, and also
to erase cultural difference. For the Home Secretary, being British
involves assimilation into a society that is assumed to be advanced,
civilized, and homogenous. To ensure that immigrant practices do not
infiltrate or compromise “British values,” the White Paper lays down
the criteria for encouraging assimilation and excluding all those
subaltern arrangements that do not conform to or resemble the norm—a
norm that is both white and middle class. The White Paper proposals
are located on a slippery slope, where the line between
belongingness and non-belongingness is increasingly drawn in an
insular, culturally intolerant direction.
The White
Paper permits the possibility of the Other metamorphosing into
someone who is familiar and recognizable: the assimilated immigrant.
The goal of controlling who should and should not live in Britain is
being partly secured through the proposal to regulate whom a section
of society should and should not marry. The White Paper represents a
return to a highly exclusivist form of cultural and national
identity. It is reminiscent of a time when English identity felt it
could command, “within [its] own discourses, the discourses of
almost everybody else; not quite everybody, but almost everyone else
at a certain moment in history.”[77] The underlying message of the
proposals is that in order to be treated the same as everyone else,
to try to be like everyone else. The “everyone else” standard
constitutes the unstated universal norm from which “being British”
emerges.
D. Demonizing the Other
[T]he evil, barbarity, and licentiousness of the
colonized Other are what make possible the goodness, civility, and
propriety of the European Self.[78]
The treatment of the transnational migrant has
remained ambiguous and contested, based at times on simply a lack of
knowledge or desire to know the Other, or at times on a fear that
the migrant was arriving in hordes to disrupt the social cohesion of
or take away jobs from the (white, Christian) global North. In the
contemporary period, demographic deficits and labor demands for
nannies, maids, and domestic workers—among other factors—have
pressed nations into adopting policies that negotiate between
national cultural purity and cohesion, and economic demands. The
tensions generated by these different fears, concerns, and demands
have not been addressed exclusively within the framework of
administrative and ministerial decisions. There has been an
explosion of actors involved in the debates on immigration,
including non-governmental networks or organizations representing
the rights of migrants, ethnic lobbies, and anti-immigration
parties. The issue has been the centerpiece of elections and at the
heart of cultural debates and struggles.
After the terrorist attacks of September 11, the new
“War on Terror” commenced, and there has been a heightened anxiety
about the Other, who is increasingly perceived as a threat to the
security of the nation. The line of difference is being redrawn
along very stark divides—friend versus enemy, the good versus the
evil. After September 11, the Other has been increasingly
transformed into a fanatic and a potential enemy. The failure to
define either the purpose or limits of the “War on Terror” has
resulted in a serious casualty: groups and communities simply not
liked have become targets.[79] Additionally, the failings of the
international legal definition of terrorism—flowing precisely from
the disagreement over who is a terrorist and what constitutes
terrorism—have resulted in the unbounded, unrestrained use of the
concept of the “War on Terror.”[80]
The casting of the Other as a dangerous and negative
force to be contained finds its most explicit expression in
Australia. Asylum-seekers who have attempted to enter Australia
through clandestine means have been cast as people who are
attempting to blackmail the Australian government.[81] In response,
the Australian government has adopted a policy that regards
asylum-seekers with fear and loathing, and post–September 11, as a
danger and threat to the nation.[82]
Australia is a party to the 1951 Convention Relating
to the Status of Refugees.[83] Australian law defines refugees as
people who are outside their country of nationality or usual country
of residence and are unable or unwilling to return to or seek the
protection of that country because of a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership to
a particular social group, or for holding a particular political
opinion.[84] Australia has declared its commitment to provide
protection to refugees under the terms of the Convention and ensure
that asylum-seekers within Australia are treated in accordance with
internationally recognized human rights standards. These commitments
include a commitment not to send people back to a country where they
would be exposed to human rights violations. Under the Australian
law, asylum-seekers are categorized into two
groups: those who enter legally and those who enter
unlawfully.[85]
Australia’s Humanitarian Program offers a legitimate means of entry,
and sets a quota of permitted entries from different parts of the
world.[86] Those admitted under the program are referred to as
“refugees” and are entitled to permanent residency, health checks,
and permission to remain in the community while their applications
are processed.
Persons entering Australia illegally—without proper
travel documents—are categorized as “unlawful non-citizens” and
confined to a detention center until their cases are reviewed. Upon
review, these migrants are either granted a visa to remain in
Australia, ordered to leave the country voluntarily, or deported.
The mandatory detention policy was adopted in 1994 when nine
detention centers were established to deal with the increasing
number of persons fleeing to Australia through smuggling routes via
Indonesia. There are several reasons provided for the adoption of
these stringent and at times harsh new policies toward
asylum-seekers.[87] One justification is that these “boat people”
are not genuine asylum-seekers, but economic migrants and
“queue-jumpers” seeking to enter Australia illegally. Accordingly,
it is believed that these migrants are seeking asylum specifically
in Australia, rather than in safe haven third countries through
which they pass on their way to Australia.[88] Asylum-seekers are
thus divided into “good” and “bad” refugees.[89] The good ones are
selected through Australia’s diplomatic missions and the
Commonwealth pays for their airfare. They are immediately entitled
to permanent residency and given access to assistance programs.
“Bad” asylum-seekers arrive without invitation, illegally, and of
their own accord. These refugees are locked up until their cases are
determined.[90] There is a sense that the latter group of people is
violating Australia’s egalitarian values by not awaiting its turn
and playing by the rules.
However, under the Refugee Convention, there is no
“queue” to jump. The Convention imposes an obligation on a state
party in relation to persons within its territory regardless of
whether they arrived with a visa. William Maley has argued that
“[t]he notion of a ‘queue’ is unrelated to refugee protection:
instead, it reflects the wish of governments to be able to ‘pick and
choose’ which refugees to help (the educated rather than the
unskilled, the healthy rather than the disabled, the quiescent
rather than the ‘troublesome’).”[91] Furthermore, the effectiveness
of a policy of incarceration and deportation is undermined since it
does not stop the flow of economic migrants who constitute a portion
of the unregulated movement of people.[92] The issue of demand
remains unaddressed through such initiatives, and the unregulated
flow of people will continue until the issue of demand is addressed.
One of the effects of the mandatory detention policy
has been the arbitrary incarceration of immigrants and their
families who enter Australia through unregulated or clandestine
means in detention centers, the conditions of which have been
regarded as bordering on inhumane.[93] Under international
standards, detention must be for exceptional reasons, temporary in
nature, and not used as a form of punishment.[94] Some refugees,
including children, are locked up in medium security prisons, often
in remote and inhospitable locations, sometimes spending years
behind razor wire fencing while their applications are
processed.[95] In light of this situation, in July 2000, the Human
Rights Committee stated that the Australian government should
reassess its policies and legislation on mandatory detentions.[96]
It specifically stated that the mandatory detention of “unlawful
non-citizens,” including asylum-seekers, under the Migration Act
raises questions about compliance with article 9.1 of the
International Covenant on Civil and Political Rights. This article
provides that no person shall be subjected to arbitrary detention.
The situation of the transnational migrant has been
aggravated by a paranoia that hoards of asylum-seekers are
threatening to enter the country, and threatening the social and
cultural cohesion of Australian society.[97] More recently, in the
aftermath of the September 11, 2001 attacks, there has been an
amplification of voices depicting the transnational migrant subjects
as potential terrorists.[98] In the interest of national security,
the Australian government has enacted several pieces of legislation
prioritizing border control, and security has become a further
justification for Australia’s detention policy.[99] More recently,
under further amendments to the migration regulations,
asylum-seekers arriving in an unauthorized manner are refused family
reunification rights for a minimum of thirty months after they
receive refugee status and are not provided with travel
documents.[100] As a result, women and children might be detained
even though they may have a male family member in Australia who is
on a temporary protection visa (“TPV”). The policy has had two
inadvertent effects. Women and children are increasingly
accompanying husbands and fathers on boats for fear of otherwise
being permanently separated. Secondly, if it is not possible to
raise enough funds for the entire family to travel, the refugees who
are on a TPV are motivated to maintain contact with criminal
networks as their only hope of being reunited with their family
members.[101]
The policy toward “unlawful non-citizens” in
Australia has treated the families of asylum-seekers as though they
were criminal and dangerous, reprehensible for their condition.[102]
And the detention policy is reinforced through the representation of
these families as uncaring, even brutal and barbaric, as illustrated
in the “Children Overboard Scandal.” In October, the Australian navy
fired at an Indonesian ship carrying over 300 asylum-seekers in an
attempt to force the ship to leave Australian waters. The government
announced that the refugees were throwing their children overboard
to force the navy to rescue them and in an attempt to blackmail the
government.[103] The government stated that they had photographs of
this outrageous conduct proving that the actions of the refugees
were premeditated.[104] This publicity incident fueled the image of
the uncaring and uncivilized Other at a time when the issue of
asylum-seekers was a hot election topic.[105] Howard stated that
“[t]here is something to me incompatible between somebody who claims
to be a refugee and somebody who would throw their own child into
the sea. . . . It offends the natural instinct of protection and
delivering security and safety to your children.”[106] In February,
well after the Howard government was safely ensconced back in power,
the Prime Minister confessed that the photographs were not genuine
and that he had knowledge of this fact just three days prior to the
election, but chose not to divulge the information.[107]
During 2002, refugees in detention centers across the
country began to protest the government’s repressive policy and the
appalling conditions of the centers. In February 2002, detainees at
Woomera began a hunger strike, protesting the conditions in the
centers, especially the situation of children and young adults.[108]
Several of the detainees, including children, took up the horrifying
protest method of drinking detergent and shampoo and sewing their
lips together in a symbolic gesture of resistance against the
oppression and imposed silence that they were experiencing in the
detention centers.[109]
The government once again cast the refugees as
uncivilized child abusers who stitched together the lips of their
children.[110] One columnist supporting the government’s tough
policies toward illegal immigrants deplored the acts of lip
stitching, stating that “[t]he test is simple: who wants as
neighbors the people who have stitched shut the mouths of their
children?”[111] The families’ actions were characterized as a form
of blackmail against the government, rather than as acts of
desperation.[112]
Although this method of resistance was a particularly
disturbing one, it could be interpreted, as characterized by the
Australian Human Rights and Equal Opportunities Commission, as a
response to the “atmosphere of despair in which [the refugee
children] live.”[113] The Commissioners observed that the provision
of education for the children in the detention center was confined
to those who were twelve years old or under, but that the quality of
education was not comparable to the quality received by Australian
twelve-year olds.[114] For children over twelve, little or no
education was provided.[115] In April 2003, the Woomera detention
center was shut down. However, the government remains steadfast in
the pursuit of its refugee policy. In response to the protests over
conditions at Woomera, it proposed that the children be placed in
the care of foster parents while their parents remained in detention
centers. The proposal is reminiscent of the notorious policy that
placed Australia’s aboriginal children in the care of Christian,
white families who would teach them how to be real Australians.[116]
The assimilationist civilizing strategy relegates the subaltern
parents into the category of savage and criminal, unfit to care for
their own children.
Australia’s policy toward asylum-seekers has
historically been problematic. A trickle of people, especially those
who are non-white and non-Christian, triggers a fear of an imminent
flood.[117] This fear in the contemporary moment has been most
explicitly expressed against the “Muslim.”[118] Disproportionate
numbers of individuals from Islamic and third world countries are
placed in detention.[119] These “boat people” have been subjected to
a new form of hate speech and Islamaphobia, which expresses itself
in terms of a fear of a “Muslim invasion.” The fear of hoards of
immigrants flooding into the country is not substantiated by
statistics.[120]
This fear has been constructed in part through the
rhetoric of the far right, especially the One Nation Party, which
was a significant force in 1998.[121] The party’s fortunes have
declined since then, but its rhetoric has succeeded in influencing
public discourse on asylum-seekers. Since September 11, the Howard
government has also been able to capitalize on this fear through
recourse to the “War on Terror,” which casts the Other as evil and
dangerous. Howard was able to fight a successful election campaign
in 2001 by portraying the cross-border movements by immigrants,
refugees, and asylum-seekers into Australia as a potential terrorist
threat. In the buildup to the national elections in 2001, the two
main national parties resorted to the powerful rhetoric of the
threats of terrorism and evil. Howard declared: “[y]ou don’t know
who’s coming, and you don’t know whether they do have terrorist
links or not.”[122] Howard’s hard line position—that these
asylum-seekers were unwelcome, to be denied entry into Australia, or
to be incarcerated upon entry—won the day.
In the Australian context, the transnational migrant
is undermined through two delegitimizing moves. These subjects are
cast as blackmailers, using their situations of hardship to extract
sympathy and material benefits from the Australian government. They
are also cast as primitive and barbaric, as demonstrated in the
representation of these families in the media and government
statements regarding the “Children Overboard Scandal,” as well as
the Woomera protests. Both of these responses are based on a fear of
the Other that has heavily influenced Australian policy in an
increasingly borderless world, as well as on assumptions that the
security of the nation-state is achieved through the denial of the
transnational migrant’s security. Fear and prejudice have been
accentuated post–September 11, adding another layer of aversion to
the Other, who is now also regarded as a threat to the security of
the nation.[123]
The new “War on Terrorism” has created space for a
more strident and alarming response to the global movements of
people, reducing it at times to nothing more than an evil
threat.[124] If terrorism is defined as a transnational crime, then
by merely committing the crime of seeking illegal movement and
illegal entry, many anti-immigration parties might seize upon a
series of logically flawed deductions to conclude that migrants
could be defined as terrorists. Such simple and faulty equations can
lead to a disjuncture between the reality of the illegal migrant and
the issue of terrorism. The conflation of the migrant with the
terrorist is not new, but it has received greater attention since
September 11. It has afforded more space for the representation of
the Other as a fanatic, both dangerous and opposed to freedom.[125]
III. Conclusions: “Somewhere in Between”
The legal interventions in the lives of transnational
migrants have been articulated primarily from the perspective of the
host country. The perspectives of the migrant subject are omitted
from these interventions. However, these are the perspectives that
can assist in untangling the conflations and confusions that are
taking place between trafficking, migration, and terrorism in the
international and domestic legal arenas. The perspec-tive and
location of the transnational migrant subject must be foregrounded—not
as a terrorist, nor as a victim, but as a complex subject affected
by contemporary global processes.
In all three situations discussed in the Article, the
focus of the regulatory effort has been on the borders. These
efforts are based on the assumption that the movement of the
transnational migrant subject is a consequence of organized criminal
networks and “evildoers” and their manipulative and devious
maneuvers. The consequence of this assumption is that the receiving
country is not in any way implicated in these movements—it is simply
the passive recipient. This assumption is not universal, but the
legal interventions reviewed in this Article suggest that the larger
part of the responsibility lies with those who move. As a result,
the transnational migrant becomes the site of accountability as well
as the site for enforcement. The three examples illustrate how legal
interventions tend to individualize the nature of the movement,
regard it as a deliberate transgression and a threat. However, the
broader global canvas against which such transnational migrations
occur is not addressed. The global push and pull factors that compel
movement cannot be addressed through responses that locate such
movement exclusively in the individualized transnational subject.
Cross-border movements are an integral aspect of
globalization and thus have become a fundamental feature of the
contemporary moment. Although a new legal order has emerged to deal
with, and facilitate the cross-border movement, of capital, goods,
and services, there has not been a simultaneous response to deal
with the concomitant cross-border movement of people and labor.[126]
Instead states have sought refuge in traditional notions of
nation-state identity and sovereignty to resist cross-border
movements.[127] This assertion of national identity is deployed
through assimilationist and essentializing policies, as well as
through the production of fear of the Other as a threat to the
nation’s security.
Prior to September 11, there was some recognition
that the cross-border movements needed to be addressed in more
transnational terms. After the attacks on the World Trade Center,
these conversations have become muted, and inversely, the targeting
of the transnational migrant has become more acute.[128] After
September 11, the urgency of the situation has been underscored by
the “War on Terror” and the fear of imminent threats to national
security.[129] Legal reforms are further alienating those who have
been cast as the “new enemy.”[130] The recourse to border controls
and constructions of ethnic purity, cultural values, and nationalism
arise out of the anxieties of dealing with difference, and serve to
stigmatize, penalize, and criminalize the transnational migrant.
Cross-border movements have been caught within the framework of a
“war” fought along the simple binaries of good versus evil, and
civilization versus barbarism. The issues of border crossing cannot
be adequately addressed through such binaries. Indeed this myopic
response will do little to discourage the illegal crossing of
borders or the determination of those who want to move. These
responses push us further away from addressing the complexity of
cross-border movements and the equally complex legal and political
responses required to address the issues raised by such movements.
In order to address the issue of cross-border
movements, we cannot simply remain confined to the domestic arena,
where regulatory enforcement is focused on the individual and the
border. Nor can this process be addressed in the international legal
arena purely in terms of criminality or trafficking. It is important
to recognize that the erection of borders through immigration
policy, anti-terrorist legislation, and anti-trafficking laws, or by
a simple policy of incarceration, will not succeed in stopping cross
border movements, meeting a nation’s security needs, or protecting
the sovereign subject. People will continue to move illegally if
legal means are not available. Indeed, migrants are moving through
irregular and clandestine channels precisely because of the system
of political, social, cultural, and economic exclusions that are
being produced, in part, through legal interventions.
The problems produced through trafficking, smuggling,
and unlawful movement can only partly be alleviated by the expansion
of immigration laws that acknowledge and accommodate the entry of
people other than those who are part of the highly skilled
information technology work force.[131]
At the
same time, the conferring of legal rights does not address some of
the normative challenges produced by the transnational migrant. Her
movement across borders exposes the porosity of national borders and
breaks down the binaries, the “us and them,” “here and there”
distinctions that inform the legal regulation of transnational
migrants and reveals her location somewhere in between these
binaries. She exposes how legal discourse produces exclusions and
reinforces differences by drawing bright lines delineating
legitimacy of border crossings. Transnational migrants have
continuously disrupted these lines and upset the neat boundaries
between the domestic and the international, between the national and
the transnational, and between the local and the global.
Transnational movements therefore require a
transnational response and analysis—they cannot be stuck within
older frameworks. A radical departure is required in the area of
legal responses to migration. The story of the transnational migrant
subject must be told in the context of globalization. This subject
exposes the need to think about law and rights in ways that are not
confined to the boxes of sovereignty, the nation-state, and the
autonomous subject of liberal rights discourse. The liberal state
and the liberal subject are based on the idea of fixed borders, with
clearly identifiable interests and identities. They are imbued with
the power to decide, choose, and act autonomously. Yet the challenge
of globalization, which brings the challenge of migration and
non-state actors to the legitimacy of the borders of the sovereign
state and the autonomous subject, indicates otherwise. The
complexity of new global formations and the dynamic character of the
individual who crosses borders challenge any notion that the state
and individual are hermetically sealed or capable of exercising
control through self-contained power. The inability to distinguish
those who constitute national subjects from those who are alien or
foreign reflects the uneasy location of a distinct national entity
with distinct borders and a distinct national subject with borders.
The legitimizing tools of cohesion, unity, and sovereignty become
blunt in the face of a more complex and integrated world and global
economy.
The shift to a transnational framework is neither
easily achieved nor persuasive. The right to determine who is
entitled to enter into a country remains a prized prerogative of
nation-states. However, this discussion reveals that current
strategies are not stopping entry, but merely encouraging the
production of a clandestine migrant mobility regime that facilitates
clandestine movement. A transnational framework can challenge the
complex global processes that instigate such movements and moves
away from viewing the Other as the main producer of illegality and
criminality. In the process, it can serve to break down the
binaries, the “us and them,” “here and there” distinctions, and
exposes how these oppositions are partly produced in and through
legal discourse and the focus on a state-centered framework. As long
as nation-states neglect to view the issue of transnational
migration through the complex lens of globalization and market
demand, the (in)security of the nation-state and the rights of the
transnational migrant will remain unaddressed, thereby contributing
to the growing instability of both the host country and this
itinerant population.
The transnational migrant is a subject who remains
present and disruptive of any legal project that continues to compel
assimilation, exclude, marginalize, or erase her presence. In
Dirty Pretty Things, every move to unearth, capture, or
remove this clandestine subject is subverted, and the migrant
continues to pursue her dreams and direction undeterred although her
situation remains fraught and vulnerable to exploitation. It is only
through the centering of this new global actor that law can begin to
address the real issues that emerge in the context of cross-border
movements and engage with the new challenges that are being posed in
the contemporary moment of globalization.
The principal, practical effect of the linkage of
international law to the standards of civilization was the system of
“capitulations” or, in other words, the “unequal” treaties by which
the civilized nations reserved a special jurisdiction . . . over
their own nationals, whom they did not wish to have subjected to the
legal order and justice system of a half-civilized or uncivilized
country.
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