framing international migration

Framing international migration

Sara Dehm*

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)

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.

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’.1 Using the format of a simple, stylised website, the cam-

paign aims to ‘change the conversation’ about migration by putting forward the

‘real facts’ about migrants and promoting an understanding of the ‘bigger pic-

ture’ of how migration shapes our world. To do so, the website narrates the

* Senior fellow and PhD candidate, Melbourne Law School, The University of Melbourne; Visiting

Fellow, Faculty of Law, The University of New South Wales. Email: [email protected]. 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.

1 IOM, Migrants Contribute, available at: http://www.migrantscontribute.com/ (last visited 5 January

2015).

London Review of International Law, Volume 3, Issue 1, 2015, 133–168

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‘moving’ stories of 11 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 individ-

uals and as a collective—are depicted as overwhelmingly beneficial and desir-

able 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’.2

The IOM’s ‘migration-positive’ campaign reflects the contemporary inter-

est that international institutions have shown in the regulation of human move-

ment 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’ inter-

national agenda that promotes the ‘freer and safe movement of people across

borders’ while also respecting the human rights and dignity of migrants.3 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 migra-

tion’ 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 ‘ir-

regular’ 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’,

2 IOM, World Migration Report: Migrant Well-Being and Development (IOM, 2013) 176.

3 UN General Assembly, Declaration of the High-Level Dialogue on International Migration and

Development, GA Res. 68/L.5, 1 October 2013.

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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.4

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.5 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.6 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 US 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 at-

tempts to shape life through the commodification of human mobility and the

unequal distribution of rights, capital, exploitation and vulnerability.7

4 IOM, World Migration Report: Managing Migration – Challenges and Responses for People on the

Move (IOM, 2003) 110.

5 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).

6 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).

7 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 Pecoud (eds), Disciplining the Transnational Mobility of People (Palgrave

Macmillan, 2013) 41.

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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.8 Many of these people were from Eritrea and Somalia, both

considered ‘refugee-producing’ countries by the UN.9 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 simultan-

eously 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’.10 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 posthu-

mously grant Italian citizenship to those who had died,11 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’.12

This triangulated scene offers an entry-point into both the contested

frames that shape understandings of human mobility and how particular

8 ‘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).

9 UNHCR, Global Trends 2013: War’s Human Cost (UNHCR, 2013).

10 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.

11 ‘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.

12 For an 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.


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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 institu-

tions’.13 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, contest-

ation 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 enga-

ging legal relations. I argue that each book presents a different jurisdictional

schema for apprehending how law orders human mobility and for understand-

ing the different subjects and actors that constitute this international legal

order.14 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 com-

munity of citizens. These strategies engage specific juridical gestures in relation

to international law, whether through a positivist enunciation and systemisa-

tion 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.

13 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,

domesticised settings: L Eslava, ‘Istanbul Vignettes: Observing the Everyday Operation of

International Law’ 2 London Review of International Law (2014) 3.

14 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).


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THE JURISDICTIONAL WORK OF BOOKS

All three of the books reviewed in this article speak to the discipline of inter-

national law—and the office of the international lawyer—in distinct ways,

offering their own account of how law conditions human mobility.15 The

first book is Foundations of International Migration Law, an edited collection

published by Cambridge University Press in conjunction with the IOM.16

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.17 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 writ-

ten in a clear and accessible style, adopting an efficient and expository tone that

helps familiarise readers with the basic legal principles and institutional pro-

cesses that constitute this ‘fragmented and unfamiliar’ area of international

law.18 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 pro-

fessional community and transmitting legal relations across time and space.

The second book, Jeremy Harding’s Border Vigils, in contrast, is a jour-

nalistic account of the workings and effects of contemporary sovereignty and

borders, focusing in particular on the European Union and Mexico–US

region.19 More akin to the genre of travel writing, Border Vigils compiles

Harding’s tales of encounters as he journeys to what others have named

15 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 ‘interna-

tional 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 mi-

gration 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.

16 B Opeskin, R Perruchoud & J Redpath-Cross (eds), Foundations of International Migration Law

(Cambridge UP, 2012).

17 B Opeskin, R Perruchoud & J Redpath-Cross, ‘Preface’, in Opeskin et al. (eds) (2012) xi, xii.

18 Ibid xi.

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


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‘borderscapes’20—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 con-

temporary 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 understand-

ings of migration and shape, in part, the practices of migrants themselves.21 As a

contributing editor of the London Review of Books, Harding epitomises a par-

ticular type of public intellectual that holds the entirety of the world in their

deliberative, part laconic, yet part probing gaze. Written for a popular reader-

ship 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 plays in en-

trenching 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 sov-

ereign 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.22 As both a scholarly and political contribu-

tion, 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’.23 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

20 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.

21 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 Criminalizes Immigrants (Beacon Press, 2008); P Mares, Borderlines: Australia’s

Treatment of Refugees and Asylum Seekers (UNSW Press, 2001).

22 S Mezzadra & B Neilson, Border as Method, or, the Multiplication of Labor (Duke UP, 2013).

23 Ibid 9.


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international division of labour, governmentality, and the politics of the com-

mons.24 Of particular interest to Mezzadra and Neilson is the ‘world configur-

ing 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.25 Adopting the

genre of a (carefully articulated) research manifesto that they hope will be

deployed for activist purposes,26 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 border-

less world’ within the pages of the book.27 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.28 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 Migration Law, popular non-

fiction works like Border Vigils or expositions of political theory like Border as

24 S Mezzadra & B Neilson, ‘Geography Is Not Enough’ 3 Dialogues in Human Geography (2013) 332.

25 Mezzadra & Neilson, Border as Method (2013) vii.

26 G Yanoshevsky, ‘Three Decades of Writing on Manifesto: The Making of a Genre’ 30 Poetics Today

(2009) 257.

27 Mezzadra & Neilson, Border as Method (2013) 13.

28 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).


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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.29 In this reading, books are representational prac-

tices 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.

SCHEMATIS ING THE INTERNATIONAL JURISDICT ION 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 . . . .30

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 ne-

cessary 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 sys-

tematisation of legal norms. Yet in doing so, Foundations of International

Migration Law instantiates an epistemic and jurisdictional frame for under-

standing 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

29 S Dorsett & S McVeigh, Jurisdiction (Routledge, 2012) 60.

30 OED.


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processes of international migration law vis-a-vis the migration laws of par-

ticular states. This endeavour hopes to achieve greater recognition for ‘inter-

national 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 com-

prehending 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 inter-

national 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.31 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 know-

ledge 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 ‘ef-

fectively create’ their topic as a coherent and intelligible subject and posit this

knowledge in ways that is recognised and received as authoritative.32 Through

their systemisation of legal knowledge and practice, textbooks craft the sub-

stance of law into particular domains and give shape to its technical practices

31 Opeskin et al., ‘Preface’ (2012) xi.

32 C Warbrick, ‘Brownlie’s Principles of Public International Law: An Assessment’ 11 European Journal

of International Law (2000) 621, 629.


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and institutional forms.33 Legal textbooks, as ‘repositories of codified know-

ledge’, 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 inter-

national 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 prac-

titioners 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).34 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

33 Dorsett & McVeigh (2012) 74-75.

34 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 compre-

hensive 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.


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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.35 To date, few international law textbooks have been written about or

addressed ‘international migration law’ as a distinct and standalone field of legal

scholarship.36 With the exception of international laws on refugeehood, nation-

ality 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 interna-

tional 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 illus-

trate 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’.37 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 reso-

lute, 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 this 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

35 On the rise of ‘global constitutionalism’, see J Klabbers, A Peters & G Ulfstein (eds), The

Constitutionalization of International Law (Oxford UP, 2009).

36 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.

37 L Oppenheim, International Law, 3rd ed. (Longmans, Green & Co, 1920) 494.


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since the home State is not obliged to exercise jurisdiction over its subjects

abroad’.38 Oppenheim’s project—in excluding from the purview of interna-

tional law the authority to administer migration—rationalised the broader

trend of states increasingly to consolidate and monopolise control over the

‘legitimate means of movement’,39 at the expense of a qualified individual

freedom of movement espoused under earlier articulations of the jus gentium.40

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, contem-

porary iteration of such ‘sovereignty thinking’ in the sphere of migration law

persists, perhaps more noticeably among state actors than jurists.41 Catherine

Dauvergne argues that states have fixated upon migration control as the ‘last

bastion of sovereignty’ in response to a particular anxiety around the waning

power of the nation-state in the face of transformations brought about through

economic globalisation. This, for Dauvergne, 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.42 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’.43 Howard’s rhetorical refusal to recog-

nise Australia’s obligations under international refugee law or the law of the sea

38 Ibid 238-39.

39 J Torpey, The Invention of the Passport (Cambridge UP, 2000) 2.

40 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).

41 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.

42 C Dauvergne, Making People Illegal: What Globalization Means for Migration and Law (Cambridge

UP, 2007) 3.

43 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.


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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.44 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.45

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 metaphor-

ical jurisdictional ‘house’ in which only the sovereign state is ‘master’.46 For the

editors, the key challenge that this jurisdictional reconfiguration must address is

international migration law’s struggle for recognition within dominant ac-

counts 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 indi-

viduals 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’.47 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

44 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.

45 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).

46 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.

47 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 rec-

ognition of international migration law persists, with the repeated calls for recognition, reconstruc-

tion and renewal shaping the identity of the field itself.


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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 am-

bivalent 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 interna-

tional law.48 In the jurisdictional schema of ‘practical impotence’, international

norms regulating human mobility exist, but they lack effectiveness in their im-

plementation.49 Thus, the political response is, at its most ambitious, to create a

new regime for international migration governance (to counter its ‘neglected’

or ‘missing’ character50) or, as a compromise, to strengthen the existing (weak)

norms.51 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 as-

serted this position most powerfully when describing the contemporary inter-

national migration regime as one of ‘substance without architecture’.52 Both

48 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.

49 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.

50 B Ghosh, ‘Managing Migration: Towards the Missing Regime?’, in A Pecoud & P De Guchteneire

(eds), Migration without Borders: Essays on the Free Movement of People (UNESCO & Berghahn

Books, 2007) 97, 97-98.

51 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.

52 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 & Celine 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.


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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’.53

The tension between characterising the international jurisdiction to ad-

minister migration as either practically impotent (in need of new or strength-

ened 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’,54

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 sub-

stantive content.55 In order to reframe international migration law as a recog-

nisable 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.56 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

C Thomas, ‘Convergences and Divergences in International Legal Norms on Migrant Labor’ 32

Comparative Labor Law and Policy Journal (2011) 405, 406.

53 Lillich (1984) 122.

54 B Opeskin, R Perruchoud & J Redpath-Cross, ‘Conceptualising International Migration Law’, in

Opeskin et al. (eds) (2012) 1, 7.

55 Ibid 8.

56 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.


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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.57

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’.58 How this ‘equilib-

rium’ is to be achieved remains unarticulated, with the technical task for inter-

national 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.59 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.60 Yet in Hathaway’s framing, the increased

securitisation and abrogation of refugee rights are a problem of deviant states

within a sound structure, not vice-versa, to be rectified through a more expan-

sive 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,61 this appeal to burden-sharing,

57 For an alternative way of conceptualising regimes of migration governance, see, e.g., A Betts,

‘Survival Migration: A New Protection Framework’ 16 Global Governance (2010) 361.

58 R Perruchoud, ‘State Sovereignty and Freedom of Movement’, in Opeskin et al. (eds) (2012) 123, 136.

59 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’.

60 Ibid 200.

61 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.


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offered through a humanitarian framing, not only reinforces the problematic

idea—already dominant in much popular and academic writing on displace-

ment and refugeehood—of the refugee-as-burden, but also elides the structural

tensions in the international refugee law regime itself.62

Given these elusive tensions in the ‘foundations’ of international migra-

tion law, what sort of future then does the book envision for international

migration law? Here, the editors canvass two possible—and entirely famil-

iar—‘solutions’ to the ‘search for order’ in the ‘chaotic web’ and ‘tangled net-

works’ that are international migration governance. The first ‘solution’, echoing

Jagdish Baghwati’s call for a World Migration Organization,63 proposes to es-

tablish a new supranational institution specifically mandated to govern migra-

tion, 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 juris-

dictional 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’.64 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 the possibility of an alternative 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 migra-

tion’ based on and developed through state cooperation.65

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.66 If migrants appear in the pages of

Foundations of International Migration Law, it is as people in need of regulation,

62 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.

63 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.

64 Opeskin et al., ‘Conceptualising International Migration Law’ (2012) 10.

65 Ibid 7.

66 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


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either as ‘flows’ to be managed or ‘subjects’ to be bestowed with a legal cat-

egorisation or better protections.67 In eliding the human dimension of mobility

or excluding discussion of how migrant actions shape the international juris-

diction for administering migration, Foundations of International Migration

Law repeats a familiar narrative whereby the principal actors in the interna-

tional order are states, whose intentions and commitments are given effect

through international or regional institutions. This framing extends the sym-

bolic exclusion of migrants from the national to the international level, where

migrants may be included in the 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.68 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-harmonisa-

tion 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 precarious-

ness 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 resound-

ingly shaken—by Border Vigils. In this book, Harding foregrounds the anec-

dotes 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

Migration Governance without Migrants? The Nation-State Bias in the Emerging Policies and

Literature on Global Migration Governance’ 1 Migration Studies (2013) 363.

67 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.

68 See G Noll, ‘Why Human Rights Fail to Protect Undocumented Migrants’ 12 European Journal of

Migration and Law (2010) 241.


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terms of wealth and opportunity, between more and less developed parts of the

world’.69 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 asymme-

tries between the needs and entitlements’ of migrants and rich states.70 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’.71

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’,72 con-

textualising 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 encoun-

ters 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—

69 Harding (2012) viii.

70 Ibid ix.

71 Ibid x-xi.

72 Ibid xi.


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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 sover-

eignty 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’.73

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 de-

mands both outward engagement and deep introspection.74 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 grave-

yards and weaves it together with the political decisions and structural dy-

namics 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 frag-

ments 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 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 have all

been rehearsed’.75 It is here that Harding’s fragments and fragmentary view-

point are most powerful: they, in the words of Gyandendra Pandey, offer a

subject-position and gaze that ‘resist[] the drive for a shallow homogenization

and struggles for other, potentially richer definitions of the “nation” and the

future political community’.76

73 C Blanton, Travel Writing: The Self and the World (Routledge, 2012).

74 Ibid.

75 Harding (2012) ix.

76 G Pandey, ‘In Defense of the Fragment: Writing about Hindu-Muslim Riots in India Today’ 37

Representations (1992) 27, 28-29.


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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 re-

sponsible for law enforcement and customs activities, combating drug-smug-

gling 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 speed-

boats known as gommoni. Harding describes how the gommoni have the ad-

vantage 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.77 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 its efforts, steadfast in its endeavour

of defending Italy’s ‘frail territorial integrity, and with it, the integrity of

Fortress Europe, bounded by a single external border’.78

This is a thoroughly modern operation (with the Guardia using expensive

but fallible technology such as infra-red binoculars and vessel detection radar)

that amounts to, for Harding, a ‘bruising, violent and strangely abstract hunt’.79

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 iden-

tity [as] the goals’, as a ‘domestic version of America’s interventions overseas’.80

These ‘warlike methods of [border] enforcement’ are part of a broader

77 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).

78 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.

79 Ibid 9.

80 Ibid 89-90.


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competition for ‘limited’ rights and resources, involving a ‘bitter struggle over

who can or can’t access them’.81 Harding’s description recalls what Gregoire

Chamayou describes in his philosophical history of manhunts as 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’.82 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’.83 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’.84

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 per-

haps best described as one of unruliness or even, on a cursory glance, lawless-

ness. 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 juris-

diction 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,85 between citizen and alien—determine how Harding understands

and frames the unfolding scene. International law bestows upon these arrivals a

81 Ibid 87.

82 G Chamayou, Manhunts: A Philosophical History (Princeton UP, 2010) 2-3.

83 Ibid 135.

84 Harding (2012) 6.

85 For an affirmation of the categories of legal/illegal entry (even if, in the former treaty but not the

latter, this distinction is deemed to be immaterial for recognising refugeehood), see Convention


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status that means that they will either be received as asylum-seekers—as refu-

gees-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’.86 It is thus a scene that reveals the intimate con-

nection 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 founda-

tions of our thinking on asylum’.87 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.88 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 suspi-

cious 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

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.

86 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.

87 Harding (2012) 35-37, 54.

88 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.


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refugees in the poorest regions of the world.89 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’.90 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’.91 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 uni-

versal in name only, available only to those who can access them and increas-

ingly ‘rationed by a subset of rules about sovereign boundaries’.92

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 compli-

cates. 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.93 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’)94

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 sta-

bility’).95 Here, instead, migrants are imagined as abject, rejected, suffering

beings—‘the undesirables’ of Europe and North America96—who should

elicit the reader’s sympathy. At other times, migrants are presented as

89 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).

90 Harding (2012) 49.

91 Ibid 49.

92 Ibid 78, 86.

93 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.

94 Ibid 117.

95 Ibid 3.

96 Ibid 26.


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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’.97 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 spir-

alling national debt.98

If there is a limitation of Border Vigils, it is its narrow focus on only par-

ticular groups of migrants, namely asylum-seekers in Europe and undocu-

mented workers in the US. 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 (mis-

placed) perception that Europe and North America are the only desired destin-

ations 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 70 000.99 Despite these figures, tellingly, the vast

majority of the world’s refugees reside in countries in the Global South,100 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,101 South Africa102 or Qatar103—may have strengthened the

97 Ibid 54.

98 Ibid 155.

99 UNHCR (2013) 3.

100 The UNHCR estimates that developing nations host 86 per cent of the world’s refugees: ibid 2.

101 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

(2014), available at http://www.tandfonline.com/doi/abs/10.1080/1369183X.2014.960819#.

VM2T92SUeYQ (last visited 5 January 2015).

102 See, e.g., J Klaaren & J Ramji, ‘Inside Illegality: Migration Policing in South Africa after Apartheid’

48 Africa Today (2001) 35.

103 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).


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contemporary feel and analysis of the book. But more importantly, greater at-

tention 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 prin-

cipal fixation upon sovereignty within the established discourses of interna-

tional 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 insti-

tution 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, 2000 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 administra-

tive fantasy but—more sinisterly perhaps—as a proxy for the increased securi-

tisation of migration and hardening of borders against impoverished people of

the ‘poor’ world. Nonetheless, Harding’s tales also suggest an unfulfilled prom-

ise of the international, the potential for a different international if only eco-

nomic 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.104

104 A Morales, ‘Dynamic Identities in Heterotopia’, in JA Gurpegui (ed.), Alejandro Morales: Fiction

Past, Present, Future Perfect (Bilingual Press, 1996) 14.


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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 internation-

alism, 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 prolif-

eration of situated border struggles. It is in these encounters that new hetero-

geneous political subjectivities are made and the politics of the commons is

contested.

The central concern of Border as Method is to understand how the insti-

tution 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.105 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).106

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 jurisdic-

tional 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’.107 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


106 Ibid 9.

107 Ibid 16.


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territorialised spaces.108 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’.109 Here, borders are never unidirectional, always

spaces of control and resistance that are ‘hardening and softening at the same

time’110 while generating new subjectivities (‘new figures of capital’ such as

international students, migrant workers or financial traders). This dual orien-

tation of borders—as ‘at once sites for the restriction of mobility and sites of

struggle’111—enable the authors to frame borders as crucial sites for political

interventions, allowing the reader to attend, on the one hand, to how the in-

stitution 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 con-

cerns. 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 a ‘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 gov-

ernmentality), 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’.112 It is hard to

isolate the influences on this ambitious work, which draws heavily on pre-

existing scholarship (including their own).113 There is, for example, a clear

108 Ibid 165. This claim that there is no ‘clear-cut’ distinction between those who are included or those

who are excluded 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.

109 Ibid 7.

110 Ibid 175.

111 Ibid 183

112 Ibid 130.

113 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 Seen from a Taxi:


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desire to think with and extend concepts developed in European Marxist trad-

ition, particularly by thinkers like Etienne 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.114 But Mezzadra and Neilson’s concerns also have a con-

stitutive 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).115 Most notably, there is an espoused orientation to learning from

actually-existing migrant and worker struggles, although—with the exception

of a 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 subtleties of

the empirical discussions are subordinated to the authors’ desire to demon-

strate 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.116

In this frame, scholarship and acts of scholarly framings are irreducibly creative.

While many of the concepts, orientations, conversations or ethnographic stu-

dies drawn on in the book may be familiar to those engaged within these

traditions or disciplinary interventions, a key contribution of Border as

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).

114 See, e.g., E Balibar, We, the People of Europe? Reflections on Transnational Citizenship, trans. J

Swenson (Princeton UP, 2004) 110.

115 For discussion of the influence of feminist thought, see Mezzadra & Neilson, Border as Method

(2013) 159-60.

116 Mezzadra & Neilson, ‘Geography Is Not Enough’ (2013) 334.


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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 inter-

twining 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’.117 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 cap-

italist production and primitive accumulation at various stages of imperial

appropriation and colonial expansion.118 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’.119 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 tem-

porally coeval with them’.120

Mezzadra and Neilson’s gesture of troubling established cognitive and

geographic ways of understanding the world and generating ‘new geogra-

phies-in-the-making’ can also be read juridically as a challenge to, and decon-

struction of, the international legal form of the sovereign state with its territorial

imperative.121 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 both by holding on to the


118 Ibid 32.

119 Ibid 35-36.

120 Ibid 65.

121 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.


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power to exclude as well as by uncovering the multiple and overlapping pro-

cesses that have resulted in the ‘disaggregation and reconfiguration’ of sover-

eign authority.122 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 en-

meshed 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 stra-

tegically 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 mi-

grant practices—for example, in using the ‘incompatible logics of action’ be-

tween 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.123

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’.124 But the authors are

also clear that the notion of ‘border as method’ is ‘something more than meth-

odological’, 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


123 Ibid 186.

124 Ibid 17


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violent subjectivities through border struggles. Ultimately, for the authors, this

entails a reimagining of the global commons through a ‘fundamental question-

ing 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’.125 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 re-

worked 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 reimagined 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 ap-

prehended 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’.126 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 pre-

cisely what it is we see, think, recognize, and apprehend’.127 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’.128

This article has engaged with the different frames offered by three con-

trasting books for apprehending how law orders human mobility. Returning to

my opening scene, the contested framing of international migration within and

125 Ibid 279.

126 J Butler, Frames of War (Verso, 2009) 1.

127 Ibid 9.

128 Ibid 12.


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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 indi-

viduals to institutions and scripting how their conduct is juridically

apprehended.

For Foundations of International Migration Law, the recognition and sys-

temisation 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 pur-

suit of the harmonisation of state practice. At its most optimistic, the interna-

tional 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 interna-

tional domain is offered as a site of remedy and redress to avoid migrant ex-

ploitation 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 af-

fective dimensions of migration, the book asks international lawyers to pay

attention to the broader political terrain of structural inequality that interna-

tional 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 objects 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 testa-

ment to how the ‘migrant cemetery’ that the Mediterranean and other parts of

the world have become is the product of embodied lawfulness, of legal


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exclusions from authorised entry and of concerted border-enforcement prac-

tices that push migrants to attempt ever more dangerous routes, deeming un-

authorised migrants as people outside of the rights and entitlements belonging

to political communities that have mobilised economic wealth.129 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 regulat-

ing 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 articulat-

ing 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, it 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.130 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, they insist that 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-hege-

monic practices then could engender new political subjects and forms of

129 The IOM recently estimated that—shockingly—over 40 000 people have died since 2000 at world

borders: IOM, Fatal Journeys (IOM, 2014).

130 Charter of Lampedusa, available at http://www.lacartadilampedusa.org/ (last visited 5 January

2015).


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internationalism. 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 geo-

graphical 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.131 This entails noticing if and how international law has been or may

be 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 regu-

lation 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 internationa-

lised 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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framing international migration

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