Dehm, Sara --- "Framing international migration" [2015] UTSLRS 38; (2015) 3(1) London Review of International Law 133

Last Updated: 4 September 2017

This is a pre-print version, subject to minor changes, of an article published in (2015) 3 London Review of International Law 133.

Framing international migration

Sara Dehm^[1]

Abstract: This article brings into conversation three books that touch on the relationship between international law, institutional authority and human mobility. Read together, these books prod international lawyers to question where different jurisdictional schema locate authority and to notice the particular ends at stake in framing human mobility.

Brian Opeskin, Richard Perruchoud & Jillyanne Redpath-Cross (eds), Foundations of International Migration Law (Cambridge UP, 2012)

Jeremy Harding, Border Vigils: Keeping Migrants Out of the Rich World (Verso, 2012)

Sandro Mezzadra & Brett Neilson, Border as Method, or, the Multiplication of Labor (Duke UP, 2013)

PRELUDE: FRAMING MIGRATION AS AN INTERNATIONAL MATTER

To coincide with the United Nations General Assembly High Level Dialogue on Migration and Development (HLD) held in October 2013, the International Organization for Migration (IOM) launched an online campaign, entitled ‘Migrants Contribute’.^[2] Using the format of a simple, stylised website, the campaign aims to ‘change the conversation’ about migration by putting forward the ‘real facts’ about migrants and promoting an understanding of the ‘bigger picture’ of how migration shapes our world. To do so, the website narrates the ‘moving’ stories of eleven people, each presented as notable migrants who have ‘boldly’ started new lives in different countries. There is, for example, the smiling face of Carlos, a Peruvian doctor practising in Angola; Adrienne Clarkson, the former child-refugee who went on to become, amongst other things, the Canadian Governor General; and ‘globetrotting’ student Vera, who temporarily migrated from her country of birth, Germany, to undertake a degree at an elite North American university. For the IOM campaign, these portraits represent the contemporary faces of migration, shining a ‘spotlight not on where migrants come from, but on what they bring’, including not only ‘diverse skills, new points of view, and . . . determination and courage’, but also—notably—an estimated US$592 billion dollars in remittances to their home countries in 2012. Through such accounting, migrants—both as individuals and as a collective—are depicted as overwhelmingly beneficial and desirable subjects, as forces that should be ‘harnessed’ for productive social, economic or political ends and as actors who need to be placed at the ‘centre’ of the conversation: ‘instead of being the passive subjects of enquiry, migrants should be given the opportunity to tell their stories’.^[3]

The IOM’s ‘migration-positive’ campaign reflects the contemporary interest that international institutions have shown in the regulation of human movement across national borders and in the mobilisation of migrants as participatory subjects of global development efforts. For example, at the 2013 HLD—only the second such event dealing with migration to be held at the UN—institutional actors stressed the need for an ‘effective and inclusive’ international agenda that promotes the ‘freer and safe movement of people across borders’ while also respecting the human rights and dignity of migrants.^[4] These Dialogues, sitting alongside other recent institutional initiatives such as the state-led Global Forum on Migration and Development (GFMD), are heralded as an important step towards actualising a broader project of ‘managed migration’ that seeks to promote ‘safe, orderly and regular’ forms of migration. For the IOM, the paradigm of ‘managed migration’ means developing a ‘fully and effectively functioning’ international migration management system (including the increased use of border surveillance and enforcement technologies and other regularisation techniques) that simultaneously reduces forced and ‘irregular’ migration while encouraging ‘voluntary migration through authorized channels’. Such a globally-managed system, if implemented properly, the IOM suggests, can ‘restor[e] the element of choice to individuals and governments’, meet the ‘needs of the global economy and mobile populations’ and ultimately lead to benefits for countries of departure and destination as well as the migrants themselves.^[5]

Yet outside the UN compound in New York, the framing of migration was a radically different affair. The previous day, a vocal protest had gathered in Washington Square Park to convene the fourth International Assembly on Migrants and Refugees (IAMR) over three days in response to the UN HLD. Organised primarily by the Philippines-based International Migrants Alliance (IMA), the IAMR is an international grassroots-level dialogue of migrants and refugees that seeks to foreground the human consequences of poverty- or conflict-induced migration. Calling on the UN to abolish the GFMD, the IAMR argues that migration, in its current form, neither can nor will lead to economic development in the Global South.^[6] Instead of a ‘process’ that can be reformed, the IAMR frames mass labour migration as a political, social and economic ‘concern’ that stems from underdevelopment in countries of origin and that must be addressed through structural changes.^[7] In contrast to the IOM campaign, the stories foregrounded at the IAMR counter-event included that of Maria Peniche-Vargas, a 22 year-old undocumented activist, who had spent a fortnight in US immigration detention as part of the Dream 9 campaign for US immigration reform, and 14 year-old Saul Arellano, whose mother had been deported from the United States to Mexico in the previous year. Their testimonies spoke to the lived reality of the institutional policing of state borders, individual bodies and recognised rights, and emphasised the issues many migrants deal with on a daily basis, including ‘family separation, labour exploitation, wage theft, detention, deportation, criminalization and discrimination’. In asserting the presence of those disempowered by the global ordering of mobility, the IAMR expressed a public rejection of the ‘managed migration’ paradigm’s attempts to shape life through the commodification of human mobility and the unequal distribution of rights, capital, exploitation and vulnerability.^[8]

This staged encounter between two conflicting framings of international mobility occurred on the same day as a third event that captured international attention. Far away from the auditoriums of the UN Headquarters and streets of New York, a boat travelling from Libya reportedly caught fire and capsized off the coast of the small Italian island of Lampedusa. As a result, an estimated 366 people drowned.^[9] Many of these people were from Eritrea and Somalia, both considered ‘refugee-producing’ countries by the UN.^[10] The resulting efforts to make sense of and respond to the mass drowning reveal the competing frames through which particular forms of human mobility become viewed, and in particular the governmental impetus to treat unauthorised migration simultaneously through humanitarian and criminal lenses. Inside the UN General Assembly, the news of these deaths prompted HLD delegates to observe a one-minute silence to ‘honour the victims’ and ‘express their shock and grief’ about the humanitarian disaster while reaffirming their commitment to tackle the perceived ‘evils’ of ‘all forms of human trafficking’.^[11] This paradoxical logic was most tellingly illustrated by the Italian Prime Minister’s much-lauded decision to declare an official national day of mourning in Italy and posthumously grant Italian citizenship to those who had died,^[12] while the migrants who had survived the boat sinking were (less publicly) denied this status, and remained liable to administrative detention, criminal prosecution and forced deportation under Italian law that criminalises ‘clandestine immigration’.^[13]

This triangulated scene offers an entry-point into both the contested frames that shape understandings of human mobility and how particular frames are used to authorise different institutional practices and paradigms for action. Both the IOM and IAMR campaigns frame the issue of human mobility in ways that make a direct appeal to specific international institutions to locate migration within their mandates, whether as a concern for ensuring order or for challenging global inequality. As Martti Koskenniemi reminds us, the ‘choice’ of frame in legal matters is often a struggle over institutional hegemony, where ‘political conflict is waged on the description and re-description of aspects of the world so as to make them fall under the jurisdiction of particular institutions’.^[14] For international lawyers, at stake in acts of framing are questions of authority, jurisdiction and institutional responsibility, where particular frames set the conditions for apprehension, recognition and regulation but also make the frame and that which is enframed always open to redescription, contestation and reconfiguration.

The article brings into conversation three recently published books that touch on the relationship between international law, institutional authority and human mobility. Substantively, each book demonstrates how human mobility becomes conditioned or even captured by law through different frames, making human mobility into a subject of and for international institutional action. This article argues that books, when read as legal devices, can reveal the epistemic and material construction of international law for ordering human mobility. Methodologically, this article suggests that a careful reading of how human mobility is framed can illuminate the different modes of arranging and engaging legal relations. I argue that each book presents a different jurisdictional schema for apprehending how law orders human mobility and for understanding the different subjects and actors that constitute this international legal order.^[15] In my reading, each book is representative of a different strategy for framing and calling sovereign power to account for its exclusionary logic and practices towards those deemed to be outside of the recognised political community of citizens. These strategies engage specific juridical gestures in relation to international law, whether through a positivist enunciation and systemisation of foundational norms that seek to shape or limit sovereignty, an empirical evaluation of the human and ethical consequences of sovereignty, or a critical prognosis and reformulation of the activity, practices and subjects of law.

THE JURISDICTIONAL WORK OF BOOKS

All three of the books reviewed in this article speak to the discipline of international law—and the office of the international lawyer—in distinct ways, offering their own account of how law conditions human mobility.^[16] The first book is Foundations of International Migration Law, an edited collection published by Cambridge University Press in conjunction with the IOM.^[17] Written in the genre of the contemporary textbook, this edited collection aims to be a ‘foundational’ compendium that addresses a perceived ‘gap’ in both existing scholarly literature and practical understandings of international migration law.^[18] It purports to provide a ‘comprehensive’ but not ‘exhaustive’ account of the principal themes in international migration law, serving as a practical manual for students, policy-makers, diplomats and legal practitioners alike. True to this purpose, Foundations of International Migration Law is written in a clear and accessible style, adopting an efficient and expository tone that helps familiarise readers with the basic legal principles and institutional processes that constitute this ‘fragmented and unfamiliar’ area of international law.^[19] Of the three books, Foundations of International Migration Law is most closely attached to the office of the international lawyer, devised as an artefact of law that is necessary for recognising a distinct legal ‘domain’, creating a professional community and transmitting legal relations across time and space.

The second book, Jeremy Harding’s Border Vigils, in contrast, is a journalistic account of the workings and effects of contemporary sovereignty and borders, focusing in particular on the European Union and Mexico-US region.^[20] More akin to the genre of travel writing, Border Vigils compiles Harding’s tales of encounters as he journeys to what others have named ‘borderscapes’^[21]—spaces where the boundaries of a nation-state are articulated and that are marked by rival discourses and practices that imagine, instigate, police or contest the values and limits of political communities in complex ways. Harding’s stories attest to the material and affective dimensions of contemporary borders, tracing the ‘unorthodox, dangerous routes’ that refugees take to get to ‘safe’ countries while also providing snapshots into the economic, legal, political and cultural forces that both frame contemporary understandings of migration and shape, in part, the practices of migrants themselves.^[22] As a contributing editor of the London Review of Books, Harding epitomises a particular type of public intellectual that holds the entirety of the world in their deliberative, part laconic, yet part probing gaze. Written for a popular readership presumably located in what Harding refers to as the ‘rich world’, the book’s style is thickly descriptive, attentive to the specifics of each story he tells while at the same time mounting a convincing argument about the perverse role that the zealous instigation and policing of state sovereignty and borders play in entrenching global inequality and ‘keeping migrants out’ of the Global North. Border Vigils, in contrast to Foundations of International Migration Law, calls on international lawyers to be aware of the effects of their craft in bolstering sovereign claims to exclusion or upholding out-dated legal regimes and categories, while also fleetingly suggesting the possibility of a more ethical or expansionist international domain to fulfil its proclaimed humanitarian promise.

The third book, Border as Method, is framed as a work of political theory, jointly written by two academics, Sandro Mezzadra and Brett Neilson, engaging with myriad political traditions.^[23] As both a scholarly and political contribution, Border as Method is concerned with positing a ‘new theoretical approach’ for understanding the materialisation, proliferation and contestation of borders in contemporary processes of what they term ‘postcolonial capitalism’.^[24] The book is a ‘deliberately wide-ranging’ study that draws on a range of literature and disciplines in order to offer a diagnosis of the production of global space and to rethink some familiar and expansive analytical concepts such as the international division of labour, governmentality, and the politics of the commons.^[25] Of particular interest to Mezzadra and Neilson is the ‘world configuring function’ of borders—the ‘strategic role [they] play in the fabrication of the world’ and how they configure—both spatially and temporally—relations of capital, subjectivity, authority and knowledge-production.^[26] Adopting the genre of a (carefully-articulated) research manifesto that they hope will be deployed for activist purposes,^[27] the study contributes to a broader political project of observing and inserting the antagonism of ‘border struggles’ into reified narratives of globalisation’s ‘smooth’ flows of capital and people. Deeply critical of the work of borders, Mezzadra and Neilson nonetheless warn their readers from the outset that they ‘will not find a recipe for a borderless world’ within the pages of the book.^[28] Border as Method rather asks readers to attend to how global life is shaped through the workings of the border, where legal forms such as sovereignty play a constitutive role in both enabling the expansion of capital and the stratification of jurisdictions and subjects as well as animating migrant struggles that imagine alternative forms of political communities.

Each of the three books, then, contrasts markedly in genre, tone, intended audience and political purpose. Yet, in this article, I suggest that it is productive to read these three contrasting books alongside each other in order to illuminate their different orientations towards the nature of sovereign power and how each represents the international jurisdiction over human mobility.^[29] Each book provides a functional account of law ‘as it is’—asserting, against a construction of sovereignty that emphasises the absolute power to exclude non-citizens, that there is, in fact, an international jurisdiction that regulates migration—but where the three books differ is in how they imagine sovereign power, arrange its institutions and actors and frame its operations and effects. Books—whether legal textbooks like Foundations of International Law, popular non-fiction works like Border Vigils or expositions of political theory like Border as Method—can, as Shaunnagh Dorsett and Shaun McVeigh have suggested, act as jurisdictional devices that—through the technology of writing—craft, organise and transmit legal relations.^[30] In this reading, books are representational practices and ordering tools that give us an account of the legal relations that shape the authority to control migration. In doing so, the books provide different modalities of knowledge-production to organise, rationalise or critique legal epistemologies, institutions and techniques that order human mobility.

SCHEMATISING THE INTERNATIONAL JURISDICTION TO ADMINISTER MIGRATION

To found:
1. The action of founding or building upon a firm substructure; the state or fact of being founded.
2. fig. The action of establishing, instituting, or constituting on a permanent basis . . . .^[31]

This section reads Foundations of International Migration Law as a legal artefact that is deeply invested in the project of international law and intimately tied to the office of the international lawyer, both as a pedagogical device necessary for taking up this office and as a classificatory system for recognising, understanding and transmitting a particular domain of law. In particular, the book represents a familiar mainstream gesture within international law that seeks to hold sovereign power to account through the development and systematisation of legal norms. Yet in doing so, Foundations of International Migration Law instantiates an epistemic and jurisdictional frame for understanding and administering human mobility, that straddles the tension between seeking to bestow rights upon those otherwise abandoned by sovereign power (e.g., asylum seekers or migrant workers otherwise deemed to be outside of the sovereign polis) while at the same time reinforcing the sovereign decisionism that adjudicates the binary between lawful and non-lawful conduct, or between legitimate and non-legitimate forms of movement. In the terms offered by Foundations of International Migration Law, the making of sovereignty, as an international legal form, becomes a technocratic undertaking.

Central to the project of Foundations of International Migration Law are the substantiation and development of a field of ‘international migration law’. As the architectural metaphor in the book’s title suggests, the book aims to provide clear ‘foundations’ for framing the basic principles and institutional processes of international migration law vis-à-vis the migration laws of particular states. This endeavour hopes to achieve greater recognition for ‘international migration law’ as an identifiable field of law as well as to contribute to its evolution in practice. Against the dominance of the national frame for comprehending the regulation of human mobility, the book offers a jurisdictional schema where the international domain is imagined as already regulating human mobility but in an insufficiently recognised manner. For example, in the Preface to Foundations of International Migration Law, the editors assert that few have paid international migration law ‘the attention that it deserves’. While international policy-makers have been attending to the topic of international migration ‘for a very long time’, the editors suggest that overwhelmingly international jurists either remain unaware of the richness of international norms regulating migration or even respond with a ‘long and puzzled silence’ to the assertion that a body of law called ‘international migration law’ exists.^[32] This claim is central to understanding the rationale and contribution of Foundations of International Migration Law, functioning both as a descriptive assessment of the body of law that the book seeks to champion (that is, as a law, in their view, ‘as yet unfinished’) and as the implicit project statement for the book (to rectify the marginal and ‘unfinished’ nature of international migration law through the task of legal description and exposition). Through this reconstruction, the book crafts a distinct and multifaceted role for international lawyers in relation to human mobility, thereby widening the assumed jurisdictional purview and professional competency attached to this professional or scholarly office.

The task of schematising how the international domain orders human mobility undertaken by Foundations of International Migration Law aligns with the function of legal textbooks as a genre of writing that is invested in the organisation of social and legal relations. Legal textbooks as a tradition historically emerged at particular disciplinary moments as exercises in knowledge construction, organisation and consolidation. Like professional manuals or scholarly treatises, legal textbooks act as jurisdictional devices that contribute to the establishment and arrangement of a particular body of law. For legal substance to be recognised as a distinct ‘domain’ of law, textbooks must ‘effectively create’ their topic as a coherent and intelligible subject and posit this knowledge in ways that is recognised and received as authoritative.^[33] Through their systemisation of legal knowledge and practice, textbooks craft the substance of law into particular domains and give shape to its technical practices and institutional forms.^[34] Legal textbooks, as ‘repositories of codified knowledge’, thus facilitate the creation and transmission of legal knowledge across time and space, constructing the boundaries of what is considered acceptable and accepted within an interpretative community. Textbooks also allow for the pedagogical training of a new generation of international lawyers, facilitating technical apprenticeships and initiating readers into the values, vocabularies and methods of a disciplinary community.

The survey approach adopted in Foundations of International Migration Law is faithful to this purpose of delimiting the jurisdictional purview of international lawyers over human mobility as well as providing a plausible and methodical description of an ‘emerging’ domain of (international) law. The edited collection is a collaborative effort that brings together scholars and practitioners of international migration law, and consists of 15 individual chapters. The authors of each chapter expertly compress complex legal regimes, state practices and court decisions to provide a clear overview of a particular area of international migration law. Topics span themes familiar in the literature on international migration law (see, for example, David Weissbrodt and Michael Divine’s chapter on the human rights of migrants or Ryszard Cholewinski’s chapter on international labour migration) to areas considered emerging or oft-overlooked (such as Jacqueline Bhabha’s chapter on children’s law, Karoline Popp’s chapter on regional institutions and process on migration, or Natalie Klein’s chapter on the laws regulating the particular modes of international travel by sea and air).^[35] Through the technique of highlighting ‘case studies’, statistical ‘figures’ and geographical ‘maps’, the book is able to move quickly across different regional contexts, historical moments and institutional regimes, offering a juridical gaze to its readers that seeks to make legible and contain the idiosyncrasies of human movement. What emerges through the pages of Foundations of International Migration Law is, unsurprisingly for its genre, an engagement with the regulation of human mobility in a very administrative or technocratic register.

Most importantly, Foundations of International Migration Law makes a significant contribution to international legal scholarship and practice as a field-building exercise, as an extension of the dominantly-recognised categories of international law. It carves out a space for recognising the regulation of migration as well as attempts to consolidate and constitutionalise its many tenets.^[36] To date, few international law textbooks have been written about or addressed ‘international migration law’ as a distinct and standalone field of legal scholarship.^[37] With the exception of international laws on refugeehood, nationality and diplomatic immunity, international norms dealing with migration, more broadly, scarcely make a mention in generalist international law textbooks.

The lack of scholarly attention to international norms governing international migration can be explained through the predominance of jurisdictional schemas that have emphatically placed the administration of migration within the competency of sovereign states. These schemas are the product of both how modern international law has been historically conceived after its emergence as a positivist-scientific project in the late 19th-century as well as the politically-charged treatment of migration by sovereign states. Two brief examples illustrate this: first, the work of international jurist Lassa Oppenheim exemplified this shift to rationalise the nationalisation of migration controls in the writings of early international legal positivists. In his influential International Law, Oppenheim argued that states are ‘masters in their own house’ and could not be obliged by international laws to ‘allow foreigners to remain within [their] boundaries’.^[38] As a consequence of their personal and territorial sovereignty, Oppenheim emphasised that states had full discretion when deciding to admit ‘unobjectionable aliens’. Even on the question of asylum, Oppenheim was resolute, characterising the granting of refuge to non-nationals as falling wholly within the competency of states bestowed through their discretion, rather than as a right that an individual could assert against a state. For migrants, Oppenheim suggested that his configuration of international law meant that they would be under ‘two concurrent jurisdictions’ at the one time: the personal jurisdiction of their home state and the territorial jurisdiction of the state in which they were present. However, conversely, it also meant that, in some matters, a migrant may be under no jurisdiction at all, ‘since a State is not obliged to exercise jurisdiction for all matters over aliens on its territory, and since the home State is not obliged to exercise jurisdiction over its subjects abroad’.^[39] Oppenheim’s project—in excluding from the purview of international law the authority to administer migration—rationalised the broader trend of states increasingly to consolidate and monopolise control over the ‘legitimate means of movement’,^[40] at the expense of a qualified individual freedom of movement espoused under earlier articulations of the jus gentium.^[41]

Despite the proliferation of international treaties, institutional norms and processes concerning human mobility in the 20th century, particularly since the drafting of the Refugee Convention in the aftermath of World War II, contemporary iteration of such ‘sovereignty thinking’ in the sphere of migration law persists, perhaps more noticeably among state actors than jurists.^[42] Catherine Dauvergne argues that states have fixated upon migration control as the ‘last bastion of sovereignty’ in response to a particular anxiety around waning power of the nation-states in the face of transformations brought about through economic globalisation. This has resulted in states enacting domestic legislative measures that paradoxically facilitate a freer movement of international capital and goods while increasing the scrutiny and regulation of human mobility.^[43] Here, a second—infamous—example is provided by former Australian Prime Minister John Howard’s uncompromising approach to refugee politics in the wake of what became known as the ‘Tampa affair’. In September 2001, Howard doggedly refused to allow a ship—the MV Tampa that rescued 433, mainly Afghan, asylum-seekers—to enter the nearest Australian port by asserting that ‘we decide who comes to this country and the circumstances in which they come’.^[44] Howard’s rhetorical refusal to recognise Australia’s obligations under international refugee law or the law of the sea reflects a long-held construction of sovereignty—that is emboldened through international legal writings such as Oppenheim’s—that insists that states have absolute control over migration.^[45] For the purpose of this article, I shall call the jurisdictional schema offered by Oppenheim and taken up by state actors such as Howard as one of ‘rightful absence’, where the regulation of migration is seen as the ‘proper’ domain of states and relegated outside the jurisdictional purview of international law.^[46]

The project of Foundations of International Migration Law is best read against this inherited, and at times dominant, jurisdictional schema of ‘rightful absence’. Theirs is a project of restumping, if you like, Oppenheim’s metaphorical jurisdictional ‘house’ in which only the sovereign state is ‘master’.^[47] For the editors, the key challenge that this jurisdictional reconfiguration must address is international migration law’s struggle for recognition within dominant accounts of international legal scholarship and practice. While few contemporary jurists would agree today with some of Oppenheim’s claims—such as that states have unfettered discretion regarding the admission of foreigners or that individuals are not subjects of international law—nonetheless, the centrality that Oppenheim placed upon the personal and territorial sovereignty of states for the authorisation and inscription of permissible forms of mobility remains within contemporary jurisdictional schemas that frame migration regulation, appearing at times as an insurmountable barrier to acknowledging the existence or efficacy of a domain of law called ‘international migration law’.^[48] But even where international migration law is recognised within legal scholarship or practice, the terms of that recognition remain largely open: Is it a distinct field, branch, area, or regime of international law? Or is it too dependent upon national jurisdictions for its articulation and evolution? What are its particular jurisdictions or institutions? Is it primarily a subset of human rights law? Or does it have its own institutional ‘preferences and orientations’?

Largely, I argue, contemporary legal scholarship and practice appear ambivalent regarding the status and scope of international migration law, split between characterising it either as practically impotent to affect the policies of sovereign states or functionally fragmented across different regimes of international law.^[49] In the jurisdictional schema of ‘practical impotence’, international norms regulating human mobility exist, but they lack effectiveness in their implementation.^[50] Thus, the political response is, at its most ambitious, to create a new regime for international migration governance (to counter its ‘neglected’ or ‘missing’ character^[51]) or, as a compromise, to strengthen the existing (weak) norms.^[52] In contrast, the jurisdictional schema offered through the narrative of ‘fragmentation’ represents international norms regulating human mobility in a functionally-effective but diffuse manner. Migration scholar TA Aleinikoff asserted this position most powerfully when describing the contemporary international migration regime as one of ‘substance without architecture’.^[53] Both these schemas counter the narrative of ‘rightful absence’ by suggesting, in their own ways, that such a body of law (international migration law) exists but that it remains, as Richard Lillich described in his seminal 1984 book, a ‘giant unassembled juridical jigsaw puzzle’ where a ‘number of pieces are uncertain and the grand design is still emerging’.^[54]

The tension between characterising the international jurisdiction to administer migration as either practically impotent (in need of new or strengthened institutional norms) or functionally fragmented (in need of systemisation and institutionalisation) animates the pages of Foundations of International Migration Law. The editors appear alive to this tension, suggesting that while international migration law presently lacks a ‘coherent and integrated form’,^[55] it is best characterised as a ‘non-autonomous field’ of international law. Moreover, they suggest that such problems of classification should be attributed more to a ‘descriptive failure’—a failure of framing—than to any lack of substantive content.^[56] In order to reframe international migration law as a recognisable domain, the editors identify three main pillars that structure the legal field, namely, state sovereignty, human rights norms, and cooperation amongst states. These pillars offer the reader a guide or set of identifiable ordering principles to apprehend the schema and rationality of international migration law. However, unfortunately, the relationship between these three pillars is not elaborated or theorised in any sustained manner in the textbook.^[57] Greater elaboration of the ‘pillars’ of migration law, or even their use as a structuring device for approaching the substantive content of the book’s chapters, would have opened up the possibility to examine how the different regimes that make up international migration law could or do interact with each other as they govern individuals. Given that migration scholars have long called for increased acknowledgement of the ‘mixed flow’ of people as well as the instability of legal categories that inscribe a person (as a citizen, refugee, economic migrant, etc.), this shortcoming is not only a missed opportunity to interrogate key regime interactions or envision unconventional conceptualisations of the international domain but also results in replicating, through the very order of the textbook, the narrative of fragmentation that it purports to hold as its object.^[58]

The tension between state sovereignty and human rights reappears, for example, in Richard Perruchoud’s chapter on ‘state sovereignty and freedom of movement’ when discussing the global ‘securitisation’ of migration since 2001. For Perruchoud, the task for countries that wish to ‘secure their territory and keep their nationals safe’ is to find the ‘appropriate balance between facilitating migration, protecting human rights, and border control’.^[59] How this ‘equilibrium’ is to be achieved remains unarticulated, with the technical task for international lawyers appearing to be to find the most legitimate alignment between these pillars (ensuring, in Perruchoud’s words, that security measures are always ‘justified by, and proportionate to, the level of threat faced by a State’), rather than challenging the intimate place of discourses of security and selfhood in the governance of mobility. Similarly, the tension between the ‘pillars’ of human rights and state cooperation is masterfully articulated in James Hathaway’s chapter on ‘Refugees and Asylum’. While Hathaway argues that the ‘normative structure’ of refugee law is ‘sound’, he suggests that the regime is threatened by ‘its atomised system of implementation’ and the ‘absence of a meaningful mechanism’ for responsibility-sharing among states.^[60] For Hathaway, this has resulted in a ‘global apartheid regime’, which forces most refugees to remain in poorer regions of the world, where their rights and lives are seriously threatened.^[61] Yet in Hathaway’s framing, the increased securitisation and abrogation of refugee rights is a problem of deviant states within a sound structure, not vice-versa, to be rectified through a more expansive international regime with the power to distribute people rationally across the globe. Aside from the problematic overtone of treating refugees as objects to be administered by international institutions,^[62] this appeal to burden-sharing, offered through a humanitarian framing, not only reinforces the problematic idea—already dominant in much popular and academic writings on displacement and refugeehood—of the refugee-as-burden, but also elides the structural tensions in the international refugee law regime itself.^[63]

Given these elusive tensions in the ‘foundations’ of international migration law, what sort of future then does the book envision for international migration law? Here, the editors canvass two possible—and entirely familiar—‘solutions’ to the ‘search for order’ in the ‘chaotic web’ and ‘tangled networks’ that are international migration governance. The first ‘solution’, echoing Jagdish Baghwati’s call for a World Migration Organization,^[64] proposes to establish a new supranational institution specifically mandated to govern migration, while the second advocates developing a comprehensive framework—perhaps a new treaty—that sets out the rights and duties of states and migrants and would consolidate all current norms ‘in a single place’. These two solutions map onto the political projects advanced by those positioned within the jurisdictional schemas of ‘practical impotence’ and ‘functional fragmentation’ sketched above. The editors quickly dismiss the first proposal as too ‘difficult to put in motion’ and increasingly considered ‘unproductive’.^[65] And they assess as ‘unrealistic’ any comprehensive treaty as the field of international migration law is ‘too diverse’ with too little political will on the part of states (although they concede that there is some ‘merit’ in attempting to codify discrete aspects of international migration law). In the end, despite the editors’ fleeting appeal to a possibly different future international migration regime, the reader is left with the current law—with, in Oppenheim’s words, law ‘as it is, not as it ought to be’—which the editors’ claim may be a ‘good starting point for the development of a well-regulated framework for managing international migration’ based on and developed through state cooperation.^[66]

Yet where is authority located within this textual jurisdictional schema? Certainly not with those governed—as an account of migrants, migrant agency or organisations is largely absent.^[67] If migrants appear in the pages of Foundations of International Migration Law, it is as people in need of regulation, either as ‘flows’ to be managed or ‘subjects’ to be bestowed with a legal categorisation or better protections.^[68] In eliding the human dimension of mobility or excluding discussion of how migrant actions shape the international jurisdiction for administering migration, Foundations of International Migration Law repeats a familiar narrative whereby the principal actors in the international order are states, whose intentions and commitments are given effect through international or regional institution. This framing extends the symbolic exclusion of migrants from the national to the international level, where migrants may be included in physical space and territorial jurisdiction (terra) of the state as well as its economic activity (oikos) but are excluded from the recognised political community (polis), denied the ability to shape the normative foundations of community or be seen as constitutive actors that affect institutional practices and concerns.^[69] The image that remains of the international jurisdiction to administer migration after reading Foundations of International Migration Law is of a steady move towards norm-harmonisation or functional cooperation, whereby migrants’ means to empowerment will occur through the implementation of human rights norms, agreed to by states, in order to counter the heightened vulnerability to exploitation and precariousness that they may face.

BORDER FRAGMENTS

If Foundations of International Migration Law fills the reader with a sense of the necessity of developing international migration law as a political project for ensuring order, in which the conferral of human rights acts as an effective protective shield for migrants, then this confidence is troubled—even resoundingly shaken—by Border Vigils. In this book, Harding foregrounds the anecdotes of various migrants to provide glimpses into the contestatory politics and diffuse actors that constitute the global regulation of human mobility. Politically, he places the question of global inequality at the forefront of the book’s concerns, arguing that unauthorised migration has ‘much to tell us about the inequalities at the heart of human movement and the gulf, in terms of wealth and opportunity, between more and less developed parts of the world’.^[70] In contrast to Foundations of International Migration Law, Border Vigils presents us with a jurisdictional schema much more attentive to the material embodiment and systemic effects of institutions, with Harding framing his story as one concerning the all too human effects of the ‘enduring asymmetries between the needs and entitlements’ of migrants and rich states.^[71] His book could be read as a plea for the liberalisation of migration or for a better form of internationalism: in his words, as a ‘spirited defence’ of poorer migrants who migrate—unauthorised and unwelcomed—‘because of circumstances which richer economies have conspired to create’.^[72]

A major strength of Harding’s book is how it tracks the hardening of borders in Europe and North America against poorer migrants and asylum-seekers since the 1990s. Border Vigils is organised around five untitled chapters that derive from essays that Harding wrote from the 1990s onwards and has updated for publication in the book. With Harding as the reader’s guide, the chapters travel across multiple sites with interwoven narratives, lingering briefly to introduce some paradigmatic characters that constitute or encounter border regimes. Harding is particularly concerned with the affective conditions and human consequences of regulation, whether it be in narrating the perilous journeys migrants undertake (and their, at times, deadly ends in the Mediterranean sea or punitive consequences in British detention centres) or the concerted campaigns of state-lawmakers to denounce undocumented people (through, for example, legislation in Arizona that reduces the availability of state-run bilingual education programmes or that place increased pressures on employers to police the immigration status of their workers). This historical perspective serves, in Harding’s words, as a ‘prism of the recent past’,^[73] contextualising the gradual but by no means linear shifts in state practices towards a more exclusionist consensus.

The book’s title, Border Vigils, is certainly evocative, even if Harding never directly addresses the concept of ‘border vigils’ in the text. The staging of a vigil implies ceremonial conduct, perhaps ritualised interactions and slow encounters at border regions. It also denotes a certain watchfulness, even if it is not always clear who is watching or being watched: is it the vigilant migrants defying border enforcement regimes, or the nationalist vigilantes who take policing borders into their own hands? Or perhaps it is Harding himself—and with him, his readers—who are enticed into these border vigils? In this framing, the reader is intimately drawn into these encounters, implicated in the impetus to bear witness to the stories recorded in the book as well as to rethink the consequences of exclusionist policies adopted in the name of state sovereignty and of those in the ‘rich’ world. It is here that his book resonates most with the genre of travel writing, using the concept of ‘border vigils’ as a device to situate and ‘dramatize . . . an engagement between self and the world’.^[74]

Through Harding’s journey, we get a sense that, as Casey Blanton writes of another form of travel writing, the search for understanding becomes a ‘process of unravelling, the coming-apart-at-the-seams kind of experience’ that demands both outward engagement and deep introspection.^[75] It is a process that allows Harding to move slowly through the worlds he explores, gently questioning them in a way that could be read as a concrete attempt to hold the forces that construct such worlds to account. Never bluntly didactic nor brazenly moralistic, Harding uses the technique of describing physical places and the people enmeshed within them to foreground an international world of wire fences, surveillance databases, migrant holding camps and desert graveyards and weaves it together with the political decisions and structural dynamics that compel people to leave their homes and migrate: war and intervention, a dearth of work and trenchant poverty, drastic economic policy, ineffective aid and financial crises, colonial policies, historical injustices or religious, racialised or gendered persecution. Importantly, from the fragments offered in Harding’s chapters, the reader gets a sense of a world that is created and held together through seemingly minute, unspectacular or dispersed actions. At times, the stories, offered as fragments, appear too dispersed—leaving the reader wondering about the direction of Harding’s argument or desiring further analysis across the different narrative fragments. But it is these fragments and their associated imagery that, as Harding intends, ‘stay in the [reader’s] mind when the last round of statistics is no longer accurate and the arguments all have rehearsed’.^[76] It is here that Harding’s fragments and fragmentary viewpoint are most powerful: they, in the words of Gyandendra Pandey, offer a subject-position and gaze that ‘resists the drive for a shallow homogenization and struggles for other, potentially richer definitions of the “nation” and the future political community’.^[77]

To reveal how Harding frames the international regulation of migration, it is worth drawing out one fragment that Harding shares in the opening chapter. Here, he details how he accompanied Italy’s Financial Police, the Guardia di Finanza, patrolling the coast of Southern Italy in 1998. The Guardia are responsible for law enforcement and customs activities, combating drug-smuggling operations and financial crimes, but through their patrolling of Italy’s territorial waters, they are also the front-line for receiving asylum-seekers. In the late 1990s, migrants—primarily from the former Yugoslavia, Turkish or Iraqi Kurdistan, or West Africa—put their hopes in the scafisti (or people-smugglers) to deliver them undetected to European shores crammed onto inflatable speedboats known as gommoni. Harding describes how the gommoni have the advantage of moving at a frightening pace, much faster than the sturdy Guardia vessels, but they leave migrants vulnerable to the whims of the sea and climate. The Guardia’s patrol sparks, for Harding, an adrenalin-fuelled game of cat and mouse between the scafisti boats carrying asylum-seekers and the police.^[78] In this ‘dramatic’ and morose game, each side negotiates the waters—‘pursuing, circling’, ‘thrashing across the bows at a tremendous pace’, ‘loitering, veering, running straight again’—in an attempt either to avoid or capture, with one side desperately seeking to reach the promise-invested shores of Italy, while the other side determinedly sets out to thwart their efforts, steadfast in their endeavour of defending Italy’s ‘frail territorial integrity, and with it, the integrity of Fortress Europe, bounded by a single external border’.^[79]

This is a thoroughly modern operation (with the Guardia using expensive but fallible technology such as infra-red binoculars and vessel detection radars) that amounts to, for Harding, a ‘bruising, violent and strangely abstract hunt’.^[80] Elsewhere, Harding explicitly parallels the manhunts of border policing and those of state warfare when depicting the US border as an ‘operational front in yet another desert conflict’. Here, war functions as ‘the model for curbing illegal immigration [with] territorial integrity and the preservation of national identity [as] the goals’, as a ‘domestic version of America’s interventions overseas’.^[81] These ‘warlike methods of [border] enforcement’ are part of a broader competition for ‘limited’ rights and resources, involving a ‘bitter struggle over who can or can’t access them’.^[82] Harding’s description recalls, what Grégoire Chamayou describes in his philosophical history of manhunts, a form of ‘ontological policing’, where certain people (those entering spaces delineated by international law as sovereign territory, without the authorisation of that sovereign) become ‘humans who can be hunted’.^[83] For Chamayou, following Hannah Arendt, modern techniques of exclusion operate at the level of status: a person is no longer excluded from the polis by virtue of their behaviour (e.g., as punishment for a crime), but rather ‘he himself is the infraction, by the simple fact of existing, by his sole presence on the territory of the nation-state’.^[84] This is powerfully illustrated by Harding as he recounts how he watched from a distant patrol boat as some migrants waded ashore, witnessing a moment in which—in Harding’s framing—people that appear from afar as ‘tiny, pale and alien’ creatures are transformed into ‘illegal immigrants’—in his words, they become ‘clandestini, irregolari, extra-communitari’.^[85]

Unlike the image of international law as the creation and projection of contracting and circumscribed sovereign states that emerged in Foundations of International Migration Law, in these fragments, international law appears as both absent and constitutive. On the surface, the scene depicted above is perhaps best described as one of unruliness or even, on a cursory glance, lawlessness. The state, international law’s privileged subject embodied here in the Guardia, appears as an impotent and ‘cumbersome’ figure, outmanoeuvred by the faster speedboats of the scafisti (who have ‘few allegiances and no jurisdiction to defend’) and overwhelmed by the desperation and determination of individuals to defy border regulations. Yet, on another reading, this scene is filled with laws, that structure the behaviour of the Italian Guardia and our understandings of those migrating. For instance, on a procedural level, Harding notes that the Guardia are allowed to pursue the scafisti only once they have delivered their passengers, allegedly for fear that the scafisti may throw people overboard as a way of slowing down their chasers. On a categorical level, the very schema offered by international law—the distinction between legal and illegal entry,^[86] between citizen and aliens—determine how Harding understands and frames the unfolding scene. International law bestows upon these arrivals a status that means that they will either be received as asylum-seekers—as refugees-in-waiting—or as unauthorised migrants, arriving without state approval and to be seen by many, in Harding’s words, as ‘importunate, active, invasive, always other than ourselves’.^[87] It is thus a scene that reveals the intimate connection between the international legal order and states, notions of selfhood, and the construction of political communities.

Similar to the project of Foundations of International Migration Law, Harding’s account of the international domain is also of a space filled with norms and practices in need of reconceptualisation and rejuvenation. But unlike the Foundations of International Migration Law’s project of creating typologies of law, for Harding, the stories he collects rather demonstrate the tiredness of such categorical distinctions. In particular, Harding argues that the distinction between asylum-seekers and other disadvantaged migrants has ‘been worn away’ and should no longer be uncritically accepted. In such a framing, international norms around refugeehood are positioned as outdated, ‘obsolete’ and ‘anachronistic’, even if the Refugee Convention provides the ‘very foundations of our thinking on asylum’.^[88] Yet he holds on to the potential of the international domain as a site of action, suggesting that the plight of asylum-seekers would not be so dire if the UNHCR resettlement programmes were more effective and administered on a larger scale.^[89] In these brief reformist moments, Harding envisions an expansionist notion of international authority that could overcome the current deficiencies of the international system based on statism.

Like Hathaway, Harding makes a moral appeal for the mandates of certain international institutions to be bolstered so that they can bestow rights upon people forsaken by national policies. But, unlike Hathaway, Harding is suspicious of mobilising economic discourse to frame arguments for welcoming or administering refugees. Economic arguments, for Harding, are used to justify policies of refugee ‘regionalisation’ that act to keep the bulk of the world’s refugees in the poorest regions of the world.^[90] Moreover, suggesting that the Global North would benefit economically from admitting more refugees would ‘impose another qualification on the right to asylum which many refugees, damaged by experiences in their countries of origin, may be unable to meet’.^[91] Rather, Harding argues that refugees need a more ‘open’ defence, a defence not necessarily grounded in legal principles and ‘without proviso, which makes no appeal to the self-interest of host communities’.^[92] In tracking the economic and philosophical arguments for the freer movement of people, Harding seeks to question the ideals of law with its rights-based schema, noting that multiple paradoxes have emerged in Europe and North America, where ‘gated communities are anathema to the egalitarian ideal’ and rights are universal in name only, available only to those who can access them and increasingly ‘rationed by a subset of rules about sovereign boundaries’.^[93]

One of the strengths of Harding’s book is the way in which he frames his material through the perspectives he captures and the stereotypes he complicates. Through depicting the act of travelling, Harding is able to be physically close to the people he writes about, even if their movements and territorial presence are framed by law in entirely different ways.^[94] If migrants, in Foundations, appear dominantly as objects of regulation who do not actively shape international legal norms, the picture of migrants that emerges in Border Vigils is much more explicit yet ambiguous. At times, Harding depicts migrants as victims trapped by capricious laws (as ‘prisoners, shackled at their feet and handcuffed’, shuffling around a US courtroom ‘like hobbled animals’, and having their sentences of imprisonment ‘handed down at breakneck speed’)^[95] or as subjected to irrational, protectionist sentiment (for Harding, it is the ‘non-white immigrant’ who has to ‘bear the cost of Europe’s fears for its own stability’).^[96] Here, instead, migrants are imagined as abject, rejected, suffering beings—‘the undesirables’ of Europe and North America^[97]—who should elicit the reader’s sympathy. At other times, migrants are presented as economically-risky subjects who trouble the social distribution of rights and resources within nations, with Harding noting that ‘there’s no question that [asylum seekers are] competing with host citizens for resources’ when claiming benefits ‘at the public expense’.^[98] Yet, more frequently, the migrants of Harding’s tales are overwhelmingly political actors, actively negotiating borders or taking conscious risks in order to take control of and shape their lives—realising, for example, as the Cameroonian migrant Joseph did, that he would need to strike out on his own to ‘breach the wall’ of Europe in order to escape his ‘political predicament’ of grinding poverty, economic stagnation and spiralling national debt.^[99]

If there is a limitation of Border Vigils, it is its narrow focus on only particular groups of migrants, namely asylum seekers in Europe and undocumented workers in the United States. Given that the book is intentionally presented as ‘fragments’ pieced together in the course of a journalistic investigation, this need not necessarily be a weakness. However, unfortunately—except for a very brief note in the introduction—the scope of the book is not explicitly addressed or explained to the reader. This has the effect of confirming the common (misplaced) perception that Europe and North America are the only desired destinations for refugees or poorer people all around the world, while disregarding other forms and places of ‘border vigils’. While Germany and the US remain the world’s largest recipients of individual applications for asylum, receiving 109,600 and 84,400 in 2013 respectively, South Africa received the third highest number of claims, totalling 70,000.^[100] Despite these figures, tellingly, the vast majority of the world’s refugees reside in countries in the Global South,^[101] with only a fraction of these people making the hazardous journey to seek asylum in countries in the Global North. Incorporating other border conflicts—such as in Israel,^[102] South Africa,^[103] or Qatar^[104]—may have strengthened the contemporary feel and analysis of the book. But more importantly, greater attention to the connections between North America and Europe as sites of border vigils would have been interesting, particularly in relation to the flow of ideas, governmental practices, corporate capital, and migrant strategies of resistance.

Ultimately, Harding’s Border Vigils moves our attention away from a principal fixation upon sovereignty within the established discourses of international law offered in Foundations of International Migration Law, and towards embodied practices of statecraft. While sovereignty continues to function as the way states claim the authority to exclude, this claim in itself is shown to be insufficient and necessarily reliant upon an array of techniques, practices, figures and rationalities to make authority and sovereignty meaningful. For Harding, while the border is mainly depicted as a physical barrier, functioning—as the book’s subtitle suggests—to lock migrants ‘out’ of the rich world, it is an institution that is both created and challenged through human activity. The borders that Harding draws our attention to take the form of walls that must be built and scaled, checkpoints to be staffed and avoided, immigration regulations to be legislated and outmanoeuvred, and bodies of water to be patrolled and crossed. He points us both to the futility of policing borders (the US-Mexico border stretching, after all, 2,000 miles through inhospitable terrain) as well as their ever militarised enforcement (with privatised immigration prisons and biometric surveillance systems increasingly the norm). Reading Border Vigils against Foundations, Harding’s fragments leave the international legal reader with a sense of the illusive nature of the project of ‘managed migration’ where its projection of ‘safe and orderly migration’ is framed not only as an administrative fantasy but—more sinisterly perhaps—as a proxy for the increased securitisation of migration and hardening of borders against impoverished people of the ‘poor’ world. Nonetheless, Harding’s tales also suggest an unfulfilled promise of the international, the potential for a different international if only economic processes were more just, international cooperation more humane, border enforcement less exclusionary and violent, economic migrants had more rights, and the rich world lived up to its ‘egalitarian ideals’.

DIFFERENTIAL INCLUSION IN THE INTERNATIONAL DOMAIN

We live in a time and space in which borders, both literal and figurative, exist everywhere.^[105]

This brings us to the third and last book under review: Sandro Mezzadra and Brett Neilson’s Border as Method, or, the Multiplication of Labor. If Harding’s contribution leaves the reader feeling burdened, oscillating between political indignation or despair and a desire for a more expansive internationalism, then Mezzadra and Neilson’s book offers a different way of naming, framing and transforming the institutionalised and epistemic violence towards migrants. Border as Method frames human mobility within a vision of global life that is irreducibly active and heterogeneous, where the proliferation of borders ‘continuously divide[s] and redivide[s]’ spaces while also producing a proliferation of situated border struggles. It is in these encounters that new heterogeneous political subjectivities are made and the politics of the commons is contested.

The central concern of Border as Method is to understand how the institution and antagonisms of borders shape contemporary lives, subjectivities and social worlds, as well as what forms of knowledge and action can effectively intervene in the dynamic of borders.^[106] It is a project that is less interested in identifying where or what borders ‘are’ (that is, the location or ontology of borders), than in theorising the dynamics they inaugurate and sustain as well as appreciating the relation between ‘radical heterogeneous borderscapes’ (that is, borders as spatially- and temporally-situated and shifting relations).^[107] Juridically, their project attends to how borders are crucial institutions in the production of jurisdictions, where the framing of different domains of law, including the international domain, is intimately placed within and in relation to normative questions of world-making. Rather than offering a fixed jurisdictional schema, Border as Method facilitates a more open-ended and critical engagement with law and draws our attention to the creation of a world ordered by borders such as those of and within capital, territory, race and gender.

Unlike the ‘Fortress Europe’ image that resonates in Border Vigils, for Mezzadra and Neilson, the work of borders is not primarily directed towards keeping migrants ‘out’ of the Global North. Rather, Mezzadra and Neilson emphasise that the border is both an ‘epistemological device’ necessary for creating and sustaining the metaphysical distinction between subject and object as well as an institution of ‘differential inclusion’.^[108] Borders are ‘devices of inclusion’ that act to ‘filter, select and channel’ the movement of people in ‘no less violent’ ways than measures that simply exclude people from territorialised spaces.^[109] This means that the forms of inclusion facilitated by borders, for Mezzadra and Neilson, exist on a ‘continuum of exclusion, rather than in opposition to it’.^[110] Here, borders are never unidirectional, always spaces of control and resistance that are ‘hardening and softening at the same time’^[111] while generating new subjectivities (‘new figures of capital’ such as international students, migrant workers or financial traders). This dual orientation of borders—as ‘at once sites for the restriction of mobility and sites of struggle’^[112]—enable the authors to frame borders as crucial sites for political interventions, allowing the reader to attend, on the one hand, to how the institution of the border is deployed for the expansion of capital and legal logics as well as, on the other hand, how the border can be put to work in and for radical political thought, struggles and activism.

Across nine chapters, the book weaves together a diverse range of concerns. It moves from an initial examination of the multiplication of labour in postcolonial capitalism (a dynamic that has seen the disarticulation of the figure of the citizen-worker and the appearance of an ‘heterogeneous array’ of figures of labour in its place) to a discussion of what they term the ‘sovereign machine of governmentality’ (a theoretical manoeuvre that conjoins principally the works of Giorgio Agamben on the sovereign exception and Michel Foucault on governmentality), and finally, reflecting upon the task of translating the commons in an effort to rethink concepts of unity and class in order to ‘embolden the workers of the world in all their heterogeneity and multiplicity’.^[113] It is hard to isolate the influences on this ambitious work, which draws heavily on pre-existing scholarship (including their own).^[114] There is, for example, a clear desire to think with and extend concepts developed in European Marxist tradition, particularly by thinkers like Étienne Balibar, who argues that borders act as instruments of differentiation ‘transported into the middle of political space’, and Mario Tronti’s elaboration of the subjective face of labour within the Italian operaismo tradition.^[115] But Mezzadra and Neilson’s concerns also have a constitutive indebtedness to the political commitments and intellectual rigour of postcolonial theorising (in particular Dipesh Chakrabarty’s Provincialising Europe) and feminist projects (particularly those of Carla Lonzi and Carole Pateman).^[116] Most notably, there is an espoused orientation to learning from actually-existing migrant and worker struggles, although—with the exception of brief discussion of migrant slogans and tactics in Chapter 3 as well as mention of speaking to workers in Chinese factories—the degree to which the materiality and specificity of these struggles directly inform the text remains unclear. While at times the tensions between the divergent theoretical and methodological approaches that the book brings together or the subtitles of the empirical discussions are subordinated to the authors’ desire to demonstrate the power of the book’s key analytical concepts, Mezzadra and Neilson nonetheless approach their analytical framing with a refreshing self-reflexivity. Elsewhere, they suggest of the book’s method:

Concepts for us must be adequate to concrete situations. They are not carved in stone or inscribed into totalizing systems. At the same time, concepts do not merely reflect material realities. If their interface with concrete situations is no longer interesting or productive, we can always make new ones.^[117]

In this frame, scholarship and acts of scholarly framings are irreducibly creative. While many of the concepts, orientations, conversations or ethnographic studies drawn on in the book may be familiar to those engaged within these traditions or disciplinary interventions, a key contribution of the Border as Method is how it assembles and curates these diverse existing literatures in a new and agenda-setting way.

A good example of this scholarly curatorship is their discussion of intertwining geographical and cognitive borders in Chapter 2. Here, Mezzadra and Neilson weave excerpts from novels (specifically, Amitav Ghosh’s Shadow Lines) and postcolonial critiques of race with an unpacking of the etymology and material function of the 16th-century geographic term, Fabrica mundi, meaning the ‘fabrication of the world’.^[118] For Mezzadra and Neilson, fabrica as a term moved from describing a process of creation—the fabrication of order—to designating the actual order or work being created. This, for Mezzadra and Neilson, represents a ‘form of disavowal’ that reflects a broader tendency within geographic thinking, where the territorial units of modern cartography and practices of mapping conceal and naturalise processes of capitalist production and primitive accumulation at various stages of imperial appropriation and colonial expansion.^[119] In particular, the map conceals the historical processes of land appropriation as well as the ontological moment of the production between self and other, ‘constructing its epistemology on the idea of a natural proportion and measure of the world, an abstracted fabrica mundi to be projected onto maps’.^[120] Their concern is to show how ‘ontological questions of world-making are neither prior nor anterior to social, political, and economic processes of spatial transformation but, indeed, historically and temporally coeval with them’.^[121]

Mezzadra and Neilson’s gesture of troubling established cognitive and geographic ways of understanding the world and generating ‘new geographies-in-the-making’ can also be read juridically as a challenge to, and deconstruction of, the international legal form of the sovereign state with its territorial imperative.^[122] Unlike the homogenous, stable and universal form of sovereignty that is projected in Foundations of International Migration Law, Border as Method’s careful unpacking of border practices foregrounds the material, historically-contingent and relational nature of sovereign power as well as the contemporary strategies deployed in border struggles. For Mezzadra and Neilson, sovereign power needs to be understood by both holding on to the power to exclude as well as by uncovering the multiple and overlapping processes that have resulted in the ‘disaggregation and reconfiguration’ of sovereign authority.^[123] For example, this means examining the heterogeneous supranational actors and conflicting institutional rationalities enmeshed in the production of border regimes, wherein the nation-state and its associated immigration laws merely function as one ‘container’, albeit a forceful one, among many that shape border struggles. The authors’ approach to human rights as a juridical form is another telling example: for Mezzadra and Neilson, the international human right regime is simply another jurisdictional arrangement with its own particular rationality that can be invoked in border struggles rather than an enunciation of foundational norms whose violations can be deduced. This descriptive orientation enables the authors to make two gestures: first, to posit a critique of human rights as a juridical discourse enmeshed within governmental practices—whereby human rights, rather than being a ‘crucial element in the system of checks and balances that keep power at bay’ external to the exercise of power, are instead increasingly internal to practices of border control; and second, to notice how migrants may strategically appeal to human rights in order to ‘trigger’ regime conflicts between national and international authorities. Crucially, this necessitates not focusing solely on the actions of states as determining border regimes (as the gaze offered in Foundations of International Migration Law entails), but rather seeing the actions and strategies of migrants as constitutive forces. This means that migrant practices—for example, in using the ‘incompatible logics of action’ between legal regimes to their own advantage—cannot be framed as ‘passive reactions to changing circumstances but [as] deliberate and strategic acts of refusal that confuse and fluster both nation-states and international bodies’ alike.^[124]

On a methodological level, Border as Method challenges both the framing of the border as a set object or as confined to a geographical site (as a ‘neutral line’ or constructed wall) and the idea of method as a ‘set of pre-given, neutral techniques that can be applied to diverse objects without fundamentally altering the ways in which they are constructed and understood’.^[125] But the authors are also clear that the notion of ‘border as method’ is ‘something more than methodological’, suggesting that to take the notion of ‘border as method’ seriously entails a series of political questions, about the relationship between thought and action and about the reconfiguration of more just social worlds and less violent subjectivities through border struggles. Ultimately, for the authors, this entails a reimagining of the global commons through a ‘fundamental questioning of processes of differential inclusion that are constitutive of the public and its subjective figurations epitomised by citizenship’ as well as a refusal to ‘turn the border into a justice-seeking institution’.^[126] This takes us to a very different form of justice to that glimpsed through either Foundations of International Migration Law or Border Vigils. While for the former two texts the challenge was either to create a more regulated form of sovereignty or to prod the rich world to be more inclusive and faithful to its egalitarian ideals, here instead it is the very notions of sovereignty, subjectivity and community that need to be reworked in order for a form of justice to be envisioned. This is necessarily a material and responsive process. For international lawyers, at stake in such strategic acts of reworking is an initial invitation to notice how the international domain is configured through processes of differential inclusion that stratify the different forms and subjects of mobility. Through this awareness, international lawyers could then contribute to collective projects that strategically engaged and reimage the international domain and its legal forms otherwise.

CONCLUSION: READING IN THE SHADOW OF LAMPEDUSA

In Frames of War, Judith Butler theorises the ‘selective and differential framing of violence’ that regulates our ethical constitution and make certain lives apprehended as grievable. For Butler, frames are operations of power that produce particular forms of life and thereby act to ‘delimit the sphere of appearance itself’.^[127] Paying attention to acts of enframing, or calling a particular frame ‘into question’, Butler suggests, can reveal the instability of frames, showing how they ‘never quite contain . . . the scene’ and ‘never quite determined precisely what it is we see, think, recognize, and apprehend’.^[128] There is always something that ‘exceeds’ and challenges the frame. Breaking with a frame not only generates the possibility of new frames and new content, but—importantly—discloses a ‘taken-for-granted’ reality, ‘exposing the orchestrating designs of the authority who sought to control the frame’.^[129]

This article has engaged with the different frames offered by three contrasting books for apprehending how law orders human mobility. Returning to my opening scene, the contested framing of international migration within and outside of the UN High Level Dialogues signals two struggles—over making human mobility legible and over jurisdiction. There, I suggested that acts of framing are intimately connected to the task of rationalising authority and authorising institutional action. Extending Butler’s reading to frames as legal devices reveals how frames also intimately mould forms of life, attaching individuals to institutions and scripting how their conduct is juridically apprehended.

For Foundations of International Migration Law, the recognition and systemisation of an existing domain of law, international migration law, was framed as a way of overcoming the problems of sovereign power and unilateral action in the face of human mobility. The book employs a positivist legal framing in order to represent the international domain as a technical space for articulating normative content and promoting institutional action in pursuit of the harmonisation of state practice. At its most optimistic, the international domain is depicted as offering a site of order-making, with increased state cooperation and the further juridicalisation of human mobility facilitating increased channels for different types of migrant. In this frame, what is needed is the constitutionalisation of international regimes of mobility, both on the level of description and practice. On an institutional level, the international domain is offered as a site of remedy and redress to avoid migrant exploitation and deaths, even if, at present, the international jurisdiction to administer migration appears fragmented and in need of reconstruction.

In contrast, Border Vigils uses a descriptive, narrative approach to illustrate the effects of the operations of sovereign power. Through mobilising the affective dimensions of migration, the book asks international lawyers to pay attention to the broader political terrain of structural inequality that international migration law operates within and holds together. The jurisdictional schema depicted in Border Vigils makes the reader painfully aware that despite the present articulation of a plethora of migrant rights in the international domain, their realisation is constrained not simply because of a lack of political will to implement them or because of the fragmented nature of international regimes, but due to a paradox that lies at the heart of the very struggle over the form and boundaries of political communities themselves. For Harding, the paradox of enforceability of rights has resulted in migrants appearing less as absent or benign object of regulation—as they do in Foundations of International Migration Law—but rather as unwelcome, even ‘hunted’, persons. In this reading, the estimated 366 people who drowned off the coast of Lampedusa cannot be framed as isolated deaths, or even as an accident that results from a problem of lawlessness. Rather, Harding’s fragments are testament to how the ‘migrant cemetery’ that the Mediterranean and other parts of the world have become is the product of embodied lawfulness, of legal exclusions from authorised entry and of concerted border-enforcement practices that push migrants to attempt ever more dangerous routes, deeming unauthorised migrants as people outside of the rights and entitlements belonging to political communities that have mobilised economic wealth.^[130] Harding’s description of the hardening and militarisation of borders invites the reader to ponder whether perhaps a budding international migration lawyer should—rather than abandoning her office—also have a competency in norms regulating the use of force in a new kind of surveillance and warfare, ‘border wars’, a chapter that tellingly does not appear in Foundations of International Migration Law.

For Border as Method, these border struggles draw our attention to how the border as institution is constitutive of the production of order and stratification in the international domain. Yet, as Border as Method also reminds us, this proliferation and heterogenisation of the border has resulted in a propagation of sites of pushback and resistance and given rise to the possibility of articulating forms of community and commonality differently. In this sense, perhaps international lawyers could notice how the island of Lampedusa is shaped as a site of contestation, as a site for the making and unmaking of borders, where, in recent years, Lampedusa has become a destination for border pilgrimages or ‘vigils’ (visited by authority figures from Pope Francis to the President of the European Commission) as well as a site of migrant protest and solidarity. For example, over three days in late January and early February 2014, over 300 people from different civil society organisations and social movements gathered on the island collectively to draft the ‘Charter of Lampedusa’, which articulates an alternative conception of the international domain and insists upon a radical freedom of movement as well as the right to stay that also ‘implies freedom from any form of exploitation and . . . requires access to healthcare, housing, work, education, communication and legal information’ for all.^[131] While, for Mezzadra and Neilson, the Charter could be seen as an articulation of a form of radical justice and a questioning of how the commons is conceived, such collective work needs to go beyond the moment of articulation—beyond the ‘rhetorical invocation of a world without borders’—in order to rethink fundamentally social relations, including those of capital, private property and state-based welfare regimes. Such counter-hegemonic practices then could engender new political subjects and forms of internationalisms. Here, the international lawyer may be called upon to adopt an activist orientation within office, attending to, as Mezzadra and Neilson urge, the ‘ontological moment[s] of production’ that reveal how cognitive and geographical borders pattern the world as well as an array of legal practices and rationalities that give form to the subjects of migration in a highly differentiated manner.^[132] This entails noticing if and how international law has been used by migrant resistance on Lampedusa while also tracing connections to other places where the migrants at Lampedusa may come from or will go to, and how border practices and struggles are linked to such other sites.

Ultimately, while all three books challenge the framing of migration regulation as a stubbornly national affair, as the ‘last bastion of sovereignty’ in a globalising world, each offers a radically different glimpse into the makings and unmakings of authority, borders, subjectivity and mobility in an internationalised world. Read together, these three books prod the international lawyer to be more attentive to the tools of her craft, to question where each jurisdictional schema locates authority, and to notice the particular ends that are at stake in framing the international jurisdiction to administer migration.

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^[1] Senior Fellow and PhD Candidate, Melbourne Law School, The University of Melbourne; Visiting Fellow, Faculty of Law, The University of New South Wales. Email: [e-mail]. I am indebted to Anne Orford, Ben Silverstein, Julia Dehm, Stephen Humphreys, Sundhya Pahuja and two anonymous referees for their helpful suggestions and astute readings of earlier versions of this text, which have sharpened my reading of the books under review.
^[2] IOM, Migrants Contribute, available at http://www.migrantscontribute.com/ (last visited 5 January 2015).
^[3] IOM, World Migration Report: Migrant Well-Being and Development (IOM, 2013) 176.
^[4] UN General Assembly, Declaration of the High Level Dialogue on International Migration and Development, GA Res. 68/L.5, 1 October 2013.
^[5] IOM, World Migration Report: Managing Migration – Challenges and Responses for People on the Move (IOM, 2003) 110.
^[6] IAMR, ‘“We Are Workers! We Are Not Slaves!” Migrants and Refugees Challenge UN High-Level Talks’, Press Release, 11 October 2013, available at http://iamr4.com (last visited 5 January 2015).
^[7] Migrante International, ‘Migrants Dance vs Modern Day Slavery, Social Injustice and Pork Barrel’, 3 October 2013, available at http://migranteinternational.org/2013/10/03/migrante-dance-vs-modern-day-slavery-social-injustice-pork-barrel/ (last visited 5 January 2015).
^[8] For a good discussion of the counter-discourses mobilised by migrant civil society, see S Rother, ‘A Tale of Two Tactics: Civil Society and Competing Visions of Global Migration Governance from Below’, in M Geiger & A Pécoud (eds), Disciplining the Transnational Mobility of People (Palgrave Macmillan, 2013) 41.
^[9] ‘Italy Boat Sinking: Hundreds Feared Dead off Lampedusa’, BBC, 3 October 2013, available at http://www.bbc.com/news/world-europe-24380247 (last visited 5 January 2015).
^[10] UNHCR, Global Trends 2013: War’s Human Cost (UNHCR, 2013).
^[11] UN Deputy Secretary-General, ‘Remarks at the Closing of the High-Level Dialogue on International Migration and Development’, New York, 4 October 2013; ‘Statement by Italy’, New York, 4 October 2013.
^[12] ‘Letta Declares Lampedusa Shipwreck Victims Italian Citizens’, ANSA English, 4 October 2013. Italian Premier Enrico Letta later clarified that no actual citizenship would be conferred, resulting in his earlier statement that ‘the hundreds who lost their lives off Lampedusa . . . are Italian citizens as of today’ becoming a rhetorical—rather than legal—gesture, although the dead did receive a state funeral. In addition, the Italian government also launched Operation Mare Nostrum, an EU-funded cross-border project, in the aftermath of the drownings, which has resulted in over 150,000 migrants being rescued at sea in the year since October 2013. IOM, ‘IOM Applauds Italy’s Life-Saving Mare Nostrum Operation: “Not a Migrant Pull Factor”’, 31 October 2014.
^[13] For a historical account of Italy’s 2002 Bossi-Finn law, see C Finotelli & G Sciortino, ‘The Importance of Being Southern: The Making of Policies of Immigration Control in Italy’ 11 European Journal of Migration and Law (2009) 119. On the effect of this law on those who survived the October 2013 ship sinking, see S Scherer, ‘Italy Migrant Tragedy Unveils Plight of Survivors’, Reuters, 5 October 2013.
^[14] M Koskenniemi, The Politics of International Law (Cambridge UP, 2011) 336-38. Luis Eslava has eloquently argued that frames make possible the ‘re-embodiment’ of the international in mundane, domesticized settings: L Eslava, ‘Istanbul Vignettes: Observing the Everyday Operation of International Law’ 2 London Review of International Law (2014) 3.
^[15] Here, the etymology of the word ‘schema’ is instructive. Derived from the Greek word skhema (meaning form or figure), it denotes a ‘representation of a plan or theory in the form of an outline or model’, sometimes equated to a particular form of reasoning. Oxford English Dictionary (Oxford UP, 2013)., available at http://www.oed.com (last visited 5 January 2015) (OED).
^[16] I offer this reading despite the fact that only one book—Foundations of International Migration Law—is framed explicitly as an ‘international law’ book (that organises its pages around ‘international migration law’ and addresses international jurists as part of its readership). Rather, Border Vigils touches only sporadically on what would conventionally be recognised as ‘international migration law’ when dealing with international norms that govern refugees or criminalise human smuggling, while Border as Method uses law (including at times international law) as one site or institution for discussing the emergent ‘boundary conflicts’ between different governmental regimes that are constituted through law as well as to understand changing contemporary configurations of authority.
^[17] B Opeskin, R Perruchoud & J Redpath-Cross (eds), Foundations of International Migration Law (Cambridge UP, 2012).
^[18] B Opeskin, R Perruchoud & J Redpath-Cross, ‘Preface’, in Opeskin et al. (eds) (2012) xi, xii.
^[19] Ibid xi.
^[20] J Harding, Border Vigils: Keeping Migrants Out of the Rich World (Verso, 2012)
^[21] See PK Rajaram & C Grundy-Warr (eds), Borderscapes: Hidden Geographies and Politics at Territory’s Edge (Minnesota UP, 2007), especially S Perera, ‘A Pacific Zone? (In)Security, Sovereignty, and Stories of the Pacific Borderscape’, in Rajaram & Grundy-Warr (eds) (2007) 201.
^[22] Harding (2012) vii. Harding’s book is representative of a small but growing literature concerning journalistic accounts of borders: see, e.g., V Longhi, The Immigrant War: A Global Movement against Discrimination and Exploitation (Polity Press, 2013); TG Sterling, Illegal: Life and Death in Arizona’s Immigration War Zone (Lyons Press, 2010); D Bacon, Illegal People: How Globalization Creates Migration and Criminalises Immigrants (Beacon Press, 2008); P Mares, Borderlines: Australia’s Treatment of Refugees and Asylum Seekers (UNSW Press, 2001).
^[23] S Mezzadra & B Neilson, Border as Method, or, the Multiplication of Labor (Duke UP, 2013).
^[24] Ibid 9.
^[25] S Mezzadra & B Neilson, ‘Geography Is Not Enough’ 3 Dialogues in Human Geography (2013) 332.
^[26] Mezzadra & Neilson, Border as Method (2013) vii.
^[27] G Yanoshevsky, ‘Three Decades of Writing on Manifesto: The Making of a Genre’ 30 Poetics Today (2009) 257.
^[28] Mezzadra & Neilson, Border as Method (2013) 13.
^[29] On scholarship that attends to jurisdictional relations in the international domain see A Orford, International Authority and the Responsibility to Protect (Cambridge UP, 2011); S Pahuja, ‘Laws of Encounter: A Jurisdictional Account of International Law’ 1 London Review of International Law (2013) 63; S McVeigh & S Pahuja, ‘Rival Jurisdictions: The Promise and Loss of Sovereignty’, in C Barbour & G Pavlich (eds), After Sovereignty: On the Question of Political Beginnings (Routledge, 2010) 97; R Joyce, Competing Sovereignties (Routledge, 2013).
^[30] S Dorsett & S McVeigh, Jurisdiction (Routledge, 2012) 60.
^[31] OED.
^[32] Opeskin et al., ‘Preface’ (2012) xi.
^[33] C Warbrick, ‘Brownlie’s Principles of Public International Law: An Assessment’ 11 European Journal of International Law (2000) 621, 629.
^[34] Dorsett & McVeigh (2012) 74-75.
^[35] While there is at times some overlap in substance between the eclectic assortment of topics compiled in the book for pedagogical purposes, this has the advantage of each chapter providing a comprehensive snapshot of a particular theme and means that the chapters need not be read sequentially. Rather, the book lends itself nicely to being simply grabbed by a student—the aspiring international migration lawyer—needing to get a cursory overview of, for instance, the customary sources of international migration law or a recent decision of the European Court of Human Rights.
^[36] On the rise of ‘global constitutionalism’ see J Klabbers, A Peters & G Ulfstein (eds), The Constitutionalization of International Law (Oxford UP, 2009).
^[37] These notably include R Plender, International Migration Law (Martinus Nijhoff, 1972); R Lillich, The Human Rights of Aliens in Contemporary International Law (Manchester UP, 1984); TA Aleinikoff & V Chetail (eds), Migration and International Legal Norms (TMC Asser, 2003); R Cholewinski et al. (eds), International Migration Law: Developing Paradigms and Key Challenges (TMC Asser, 2007). These latter two books are more akin to edited collections than textbooks.
^[38] L Oppenheim, International Law, 3rd ed. (Longmans, Green & Co, 1920) 494.
^[39] Ibid 238-39.
^[40] J Torpey, The Invention of the Passport (Cambridge UP, 2000) 2.
^[41] For a discussion of the right of travel under earlier articulations of the jus gentium see A McKeown, Melancholy Order: Asian Migration and the Globalization of Borders (Columbia UP, 2008).
^[42] On ‘sovereignty thinking’ see Pahuja (2013). On the proliferation of international treaties and norms concerning human mobility in the 20th century see the nine-page Appendix 2 in Foundations of International Migration Law, which lists over 120 treaties and other international instruments that make up the field of international migration law. This Appendix is particularly useful for anyone who may still need convincing that international norms historically have and continue to regulate human mobility, starting with the 1907 Hague Convention (IV) and 1910 International Convention for the Suppression of the ‘White Slave Traffic’ through to the 2011 General Assembly resolution on migration and development.
^[43] C Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (Cambridge UP, 2007) 3.
^[44] This affair is also discussed in detail as a case study in Natalie Klein, ‘International Migration by Sea and Air’, in Opeskin et al. (eds) (2012) 278.
^[45] Howard’s appeal to sovereign decisionism in invoking a rhetorical ‘we’ was despite the fact that the Australian government nonetheless rationalised its refusal to allow the Tampa to disembark its passengers at the nearest Australian port using international legal arguments. On the different and conflicting constructions of international refugee and maritime law that either condemn or condone the Australian government’s actions see M Crock, ‘In the Wake of the Tampa: Conflicting Visions of International Refugee Law in the Management of Refugee Flows’ 12 Pacific Rim Law and Policy Journal (2003) 49.
^[46] This construction of sovereignty has a long genealogy connected with state claims about empire, race, labour and land that have been rearticulated across the globe: see generally McKeown (2008).
^[47] For an account of the pervasiveness of architectural metaphors in legal thinking about public law see M Loughlin, Foundations of Public Law (Oxford UP, 2010) 98-101.
^[48] This is despite the fact that international treaties governing human mobility have existed since the early 20th century as well as scholarly endeavours to systematise the domain of law: see especially the early work of Plender (1972). Nonetheless, scholarly anxiety around the existence, status and recognition of international migration law persists, with the repeated calls for recognition, reconstruction and renewal shaping the identity of the field itself.
^[49] These ways of understanding international migration law cannot be disentangled from broader jurisdictional schemas for understanding international law. In this regard, the marginalised position of international migration law may be useful as a paradigm for mapping the disciplinary anxieties and representational practices around international law more generally.
^[50] For example, Joel Trachtman suggests that the right to migrate seems ‘neglected’ in international law, and that there is a ‘remarkable scarcity of international law establishing commitments of states to admit foreigners’: J Trachtman, The International Law of Economic Migration (WE Upjohn Institute for Employment Research, 2009) 11.
^[51] B Ghosh, ‘Managing Migration: Towards the Missing Regime?’, in A Pécoud & P de Guchteneire (eds), Migration Without Borders: Essays on the Free Movement of People (UNESCO & Berghahn Books, 2007) 97, 97-98.
^[52] See, e.g., B Lyon, ‘The Unsigned United Nations Migrant Worker Rights Convention: An Overlooked Opportunity to Change the “Brown Collar” Migration Paradigm’ 42 NYU Journal of International Law and Policy (2010) 389.
^[53] TA Aleinikoff, ‘International Legal Norms on Migration: Substance without Architecture’, in R Cholewinski, R Perruchoud & E MacDonald (eds), International Migration Law: Developing Paradigms and Key Challenges (Asser Press, 2007) 479. Similarly, Vincent Chetail suggests that the contemporary fragmentation of international migration law has resulted in a framework that is ‘scattered throughout a wide range of principles and rules belonging to numerous branches of international law’, weakening the understanding and application of these principles. For Chetail, this necessitates an ‘exercise of reconstruction’ in order to develop a ‘comprehensive, coherent and contextual’ framework. V Chetail, ‘The Transnational Movement of Persons under General International Law: Mapping the Customary Law Foundations of International Migration Law’, in V Chetail & Céline Bauloz (eds), Research Handbook on International Law and Migration (Routledge, 2014). Yet, as Chantal Thomas has astutely argued, the fragmented nature of international migration law has given rise to a regulatory terrain deeply stratified by foundational political and philosophical tensions between the various treaty projects and orientations, whose tensions cannot be alleviated through technical endeavours. This means that, for Thomas, international migration law consists of numerous treaties that may ‘converge doctrinally’ but ‘diverge normatively’ in substance and effect. C Thomas, ‘Convergences and Divergences in International Legal Norms on Migrant Labor’ 32 Comparative Labor Law and Policy Journal (2011) 405, 406.
^[54] Lillich (1984) 122.
^[55] B Opeskin, R Perruchoud & J Redpath-Cross, ‘Conceptualising International Migration Law’, in Opeskin et al. (eds) (2012) 1, 7.
^[56] Ibid 8.
^[57] The effect of this deficiency means that the reader is left to perceive these three pillars in overt tension with each other, rather than interrogating the particular understandings of sovereignty, juridical rights or interstate relations that are at work throughout the book or that may posit such a blanket tension.
^[58] For alternative ways of conceptualising regimes of migration governance see, e.g., A Betts, ‘Survival Migration: A New Protection Framework’ 16 Global Governance (2010) 361.
^[59] R Perruchoud, ‘State Sovereignty and Freedom of Movement’, in Opeskin et al. (eds) (2012) 123, 136.
^[60] JC Hathaway, ‘Refugees and Asylum’, in Opeskin et al. (eds) (2012) 177, 203. For Hathaway, the problem is that the developed world has stigmatised and criminalised refugees, distorting the ‘true object and purpose of the Refugee Convention’ and abrogating its protection obligations. To deal with this uneven distribution of refugees worldwide, Hathaway advocates for a shift away from the ‘system of unilateral, state-by-state implementation of refugee law’ towards a system that rather facilitates ‘common but differentiated responsibility’.
^[61] Ibid 200.
^[62] See, e.g., G Noll, ‘Why Refugees Still Matter’ 8 Melbourne Journal of International Law (2007) 538, who argues in part that such proposals are illiberal (in that they abandon Kantian notions of cosmopolitan hospitality) and result in the greater disenfranchisement of migrants.
^[63] See, e.g., Patricia Tuitt’s argument that refugee law ‘contains’ individuals seeking asylum through a ‘narrow legal identity’ and denies them the political autonomy to determine their identities and futures: P Tuitt, False Images: The Law’s Construction of the Refugee (Pluto Press, 1996) 7.
^[64] J Bhagwati, ‘Borders beyond Control’ 82(1) Foreign Affairs (2003) 98, and more recently, J Bhagwati, In Defense of Globalization 2nd ed. (Oxford UP, 2007) 218.
^[65] Opeskin et al, ‘Conceptualising International Migration Law’ (2012) 10.
^[66] Ibid 7.
^[67] This is not unlike much of the recent literature on international migration governance, which, as Stefan Rother put it recently, ‘apparently ignores the ones who are governed’. S Rother, ‘Global Migration Governance without Migrants? The Nation-State Bias in the Emerging Policies and Literature on Global Migration Governance’ 1 Migration Studies (2013) 363.
^[68] This is despite the acknowledgement that, as Natalie Klein puts it in her chapter, it is ‘hard to deny the very human factor involved in international migration, as people endure risks, sacrifices and hardships’ in their travels to different places. Klein (2012) 260.
^[69] See G Noll, ‘Why Human Rights Fail to Protect Undocumented Migrants’ 12 European Journal of Migration and Law (2010) 241.
^[70] Harding (2012) viii.
^[71] Ibid ix.
^[72] Ibid x-xi.
^[73] Ibid xi.
^[74] C Blanton, Travel Writing: The Self and the World (Routledge, 2012).
^[75] Ibid.
^[76] Harding (2012) ix.
^[77] G Pandey, ‘In Defense of the Fragment: Writing about Hindu-Muslim Riots in India Today’ 37 Representations (1992) 27, 28-29.
^[78] Harding’s metaphor of a ‘game’ resonates with other writings on borders: see especially P Andreas, Border Games: Policing of the US-Mexico Divide (Cornell UP, 2000).
^[79] Harding (2012) 5, 9. For Harding, this ‘game’ is played at the US-Mexico border as well as within the US itself: ‘In Arizona, the pursuit of aliens is no longer confined to a cat and mouse game along the frontier. It is a grim paper chase that takes place in traffic queues and metered parking zones in Phoenix, the kitchens of fast-food restaurants, mechanics’ workshops and building sites miles from the fence’. Ibid 97.
^[80] Ibid 9.
^[81] Ibid 89-90.
^[82] Ibid 87.
^[83] G Chamayou, Manhunts: A Philosophical History (Princeton UP, 2010) 2-3.
^[84] Ibid 135.
^[85] Harding (2012) 6.
^[86] For an affirmation of the categories of legal/illegal entry (even if, in the former treaty but not the later, this distinction is deemed to be immaterial for recognising refugeehood) see Convention Relating to the Status of Refugees, Article 31(1); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 68.
^[87] Harding (2012) 6. Under international law, refugee status is declaratory rather than constitutive: see JC Hathaway, The Rights of Refugees under International Law (Cambridge UP, 2005) 11.
^[88] Harding (2012) 35-37, 54.
^[89] As testimony to the curtailed nature of such resettlements, Harding cites figures attesting to a significant decrease in the size and scale of these programmes: in the 1970s, over a quarter of a million refugees were resettled annually by the UNHCR, compared to less than 75,000 today. Ibid 4, 16.
^[90] On refugee ‘regionalisation’ see Hathaway (2012) 203; JC Hathaway, ‘Why Refugee Law Still Matters’ 8 Melbourne Journal of International Law (2007) 89. In response see Noll (2007).
^[91] Harding (2012) 49.
^[92] Ibid 49.
^[93] Ibid 78, 86.
^[94] It is telling that Harding does not reflect upon his own legal status or ability to move unhampered by law in the course of the book.
^[95] Ibid 117.
^[96] Ibid 3.
^[97] Ibid 26.
^[98] Ibid 54.
^[99] Ibid 155.
^[100] UNHCR (2013) 3.
^[101] The UNHCR estimates that developing nations host 86 per cent of the world’s refugees: ibid 2.
^[102] See, e.g., B Kalir, ‘The Jewish State of Anxiety: Between Moral Obligation and Fearism in the Treatment of African Asylum Seekers in
Israel’, Journal of Ethnic and Migration Studies (forthcoming).
^[103] See, e.g., J Klaaren & J Ramji, ‘Inside Illegality: Migration Policing in South Africa after Apartheid’ 48 Africa Today (2001) 35.
^[104] R Jureidini, Migrant Labour Recruitment to Qatar (Qatar Foundation, 2014); Amnesty International, The Dark Side of Migration: Spotlight on Qatar’s Construction Sector ahead of the World Cup (AI, 2013).
^[105] A Morales, ‘Dynamic Identities in Heterotopia’, in JA Gurpegui (ed.), Alejandro Morales: Fiction Past, Present, Future Perfect (Bilingual Press, 1996) 14.
^[106] Mezzadra & Neilson, Border as Method (2013) 17.
^[107] Ibid 9.
^[108] Ibid 16.
^[109] Ibid 165. This claim that there is no ‘clear-cut’ distinction between those who are included or those who are exclude echoes a wealth of migration and border studies literature that has long claimed that borders are constituted through active practices that must be continuously enacted, rather than as static objects to be policed.
^[110] Ibid 7.
^[111] Ibid 175.
^[112] Ibid 183
^[113] Ibid 130.
^[114] See in particular their earlier piece by the same name where they set out their general political and research project: S Mezzadra & B Neilson, ‘Border as Method, or, the Multiplication of Labor’, European Institute for Progressive Cultural Policies, 2007, available at http://eipcp.net/transversal/0608/mezzadraneilson/en (last visited 5 January 2015) See also their individual or collaborative work with others, for example: S Mezzadra & B Neilson, ‘Borderscapes of Differential Inclusion: Subjectivity and Struggles on the Threshold of Justice’s Excess’, in E Balibar et al. (eds), The Borders of Justice (Temple UP, 2013); S Mezzadra, ‘The Gaze of Autonomy: Capitalism, Migration and Social Struggles’, in V Squire (ed.), The Contested Politics of Mobility: Borderzones and Irregularity (Routledge, 2011); S Mezzadra, ‘How Many Histories of Labour? Towards a Theory of Postcolonial Capitalism’ 14 Postcolonial Studies (2011) 151; B Neilson, ‘The World Seem from a Taxi: Student-Migrants-Workers in the Global Multiplication of Labour’ 29 Subjectivity (2009) 425; B Neilson & N Rossiter, ‘Precarity as a Political Concept, or, Fordism as Exception’ 25 Theory, Culture and Society (2008) 323; B Neilson & A Mitropoulos, ‘Cutting Democracy’s Knot’ 8 Culture Machine (2006), available at http://www.culturemachine.net/index.php/cm/article/viewArticle/40/48 (last visited 5 January 2015).
^[115] See, e.g., E Balibar, We, the People of Europe? Reflections on Transnational Citizenship, trans. James Swenson (Princeton UP, 2004) 110.
^[116] For discussion of the influence of feminist thought see Mezzadra & Neilson, Border as Method (2013) 159-60.
^[117] Mezzadra & Neilson, ‘Geography Is Not Enough’ (2013) 334.
^[118] Mezzadra & Neilson, Border as Method (2013) 35.
^[119] Ibid 32.
^[120] Ibid 35-36.
^[121] Ibid 65.
^[122] Ibid 58. On the ‘territorial imperative’ of sovereign states in international law see D Kritsiotis, ‘Public International Law and Its Territorial Imperative’ 30 Michigan Journal of International Law (2009) 547.
^[123] Mezzadra & Neilson, Border as Method (2013) 195.
^[124] Ibid 186.
^[125] Ibid 17
^[126] Ibid 279.
^[127] J Butler, Frames of War (Verso, 2009) 1.
^[128] Ibid 9.
^[129] Ibid 12.
^[130] The IOM recently estimated that—shockingly—over 40,000 people have died since 2000 at world borders: IOM, Fatal Journeys (IOM, 2014).
^[131] Charter of Lampedusa, available at http://www.lacartadilampedusa.org/ (last visited 5 January 2015).
^[132] Mezzadra & Neilson, Border as Method (2013) 38.