UC Berkeley

The claim that states have an unfettered sovereign right to control their borders and exclude non-citizens from their territory is accepted everywhere without contestation. Yet it is anything but a self-evident truth. While taken for granted today, the assumption that control over migration is the “last bastion of sovereignty” represents a radical departure from the norm of freedom of movement (for some, not others, namely, white, “civilized,” Christian men) that defined international law's earlier approach. What avenues for reform, resistance, and recalibration open when we revisit the legal foundations and contemporary consequences of the dominant understanding according to which states have near-absolute authority to regulate migration as an incident of sovereignty? In the spirit of asking big questions and addressing topics of lasting relevance, this symposium seeks to problematize the view that each state has unfettered discretion to control its territory and decide who it admits “upon such conditions as it may see fit to prescribe.”1 With a surge of nationalist-populist anger and anti-immigrant sentiment rising across the globe and the corresponding shrinking of rights and protections afforded to those on the move, there is added urgency to challenge the view readily expressed in public debate that migration is an “existential threat to be managed with the full and legally unregulated power of the sovereign state.”2 This view has emboldened governments, operating alone or in concert, to invest unprecedented amounts of resources, political capital, and institutional capacity to “take back control” over borders and migration—as the Brexit slogan memorably put it. With voters across the globe naming immigration a top concern, governments are recalibrating their policies in an increasingly restrictive direction, shutting the gates of admission to would-be migrants and asylum seekers.3 The deep-seated assumption that states have inherent power over migration provides legal cover for such acts, despite the immense human toll, erosion of rights, and denial of the basic protection and dignity of those who are caught in the increasingly sweeping dragnet of ever-expanding borders and migration control regimes.4 Laws, regulations, and declarations about the urgency to “sort out the border management situation to ensure that the porous borders are addressed in a way that protects the sovereignty of our state” are nowadays proclaimed as a matter of course by public authorities in established democracies as well as autocracies, spanning the gamut from former imperial powers to post-colonial states.5 Exploring what has been forgotten or pushed underground with the triumph of the dominant understanding that states have an inherent sovereign right to control their borders—a view so prevalent that we rarely notice how it impairs our ability to imagine alternatives—is the kernel of this inquiry.