The Borders of Empire

E. Tendayi Achiume –

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The designations “illegal” or “economic” immigrant swiftly mark those to whom they are applied as legitimate targets of national exclusion. Public and academic discourse often treats such immigrants as the consummate political strangers, standing outside the political borders of “we the people” or “we the citizens,” whose status as citizens confers a collectively-held, unilateral right to decide who may cross the political and territorial boundaries of the nation-state. In the conventional account, the right to exclude is understood as an incident of nation-state sovereignty, vital for the independent self-determination of all. Within the liberal paradigm, the law of immigration is an exception to this sovereign right to exclude. Political strangers must fit into one or other exceptional category to be granted admission: high-skilled worker, student, tourist. Even refugees are admitted by way of exception, and those who meet the legal definition of a refugee enjoy the strongest, internationally-recognized legal protections against national exclusion. For so-called economic migrants—those understood to move in search of better jobs, better education or just better lives—legal and ethical entitlements to admission and inclusion remain largely at the discretion of the citizens of the receiving state. And so, if Europe wants to exclude African migrants crossing the Mediterranean, it has the right to do so.

In a recent article, Migration as Decolonization, I challenge the dominant accounts of sovereignty and the right to exclude outlined above, arguing that they ignore the theoretical and ethical salience of the political economy of empire. Very loosely, empire can be understood as the extra-territorial projection of political and economic power by one political community over another, on terms that structurally favor the former. Dominant legal and political theory focus on the borders of discrete, autonomous nation-states, but largely ignore the borders of empire. Migration as Decolonization breaks from this conventional mode to recall the colonial history of contemporary border regimes, and to spotlight the manner in which the logics of empire have long shaped the governance of borders, as the articulation of an absolutist conception of sovereignty in the Chinese Exclusion Cases illustrates. My focus is the legal and ethical implications of persisting neocolonial interconnection and subordination, which I argue mean that former European colonial or First World nations have no right to exclude the citizens of formerly colonized or Third World nations. On this account, Western European nations have no right to exclude Africans.

I begin from the premise of persisting economic and political interconnection between First and Third Worlds nation-states, which scholars such as Anthony Anghie and Siba N’zatioula Grovgui have argued are theoretically indispensable for understanding and ethically assessing international legal doctrine. I argue that the nature and extent of this interconnection sustains bonds of co-sovereignty among First and Third World peoples, bonds that mean the so-called economic migrant from the Third World is more appropriately understood as a political sibling rather than a political stranger where the First World and its peoples are concerned. This co-sovereignty gives Third World migrants claims to admission and inclusion in the First World. I further argue that economic migration from the First and the Third World, migration characterized by the search of greater capacity for self-determination in the economically prosperous First World, ought to be reconceptualized as de-colonial. By this I mean that, in so far as true decolonization remains elusive, economic migration from the Third World to the First should be understood as a form of political agency. It represents individual attempts to advance self-determination in the face of the structural political and economic subordination of the Third World to the First.

Although Migration as Decolonization focuses on neocolonial empire, there are other contemporaneous forms of empire that similarly deserve the attention of border theorists. For example, what ethical obligations relating to migration does China have with respect to all of the nations upon which it exerts political and economic domination that undercuts the sovereignty of these nations? In a recent piece in Dissent I briefly discuss the case of U.S. informal imperial intervention in parts of the world it never formally colonized such as Central America. This intervention continues to this day, and has contributed materially to the conditions fueling the flight of Central Americans to the southern border of the United States. U.S. informal empire has fundamental repercussions for how we should understand this country’s territorial and political borders, and Central American migrants, among others, should be understood as the political cousins the U.S. has insisted upon with its imperial ambitions. Migrants such as these, whose movement is a product of empire, need not rely on exceptions to the right to exclude in immigration law, they should instead be seen as not subject to it in the first place.

Migration as Decolonization joins the work of scholars such as Chantal Thomas, who has insisted that political and economic interconnection, especially where this interconnection systemically benefits some parties over others must be brought to bear on how legal and other scholars theorize international borders. “Empire” is a vital analytic for border and migration theory, because of the attention it requires legal scholars to pay to history and political economy as crucial for making sense of why we have the borders we have, and what we should make of these borders as an ethical matter.

E. Tendayi Achiume is Professor of Law at UCLA School of Law, and Faculty Director of the UCLA Law Promise Institute for Human Rights.