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.

“We all think about immigration . . . as the state asks us to think about it and, ultimately, as it thinks about it itself.” This aphorism of the sociologist Abdelmalek Sayad seems to speak to lawyers and, in particular, international lawyers who are accustomed to thinking of immigration as a mere question of sovereignty. I contend that this internalization of sovereignty by the legal profession is a pure mystification. I call for acknowledging the duality of sovereignty as a Janus with two faces. This metaphor illuminates the ontological ambivalence of the border that can be viewed as either a passage or a wall depending on the viewpoint.

A discussion of the state's “right to exclude” requires that we have at our disposal unambiguous understandings of what constitutes the state, who constitute its subjects/citizens, and who constitute aliens.1 This, however, is not the case. In fact, the reverse is more true: particular notions of the state, of subjects/citizens, and of aliens are the outcome of (among other things) practices of migration regulation. This essay interrogates two understandings of the state that characterize much scholarship on migration, including legal scholarship. First, the assumption of the salience of state borders, of citizens/subjects, and of aliens understood in national terms; second, the assumption—often condensed in invocations of the Westphalian state—that the authority to control migration across these putative borders is a longstanding and non-contentious element of state sovereignty. In such approaches, the state is simply there. It matters little what prefix—national, colonial, imperial, modern, and so forth—we affix to it. Such views are premised on the notion that the practices of governance and the institutions of the state have a fidelity to, can be deduced from, and simply reflect a set of principles. In my view, rather than understand the state as merely translating a set of principles into practice, we are better served by focusing on practices to examine how they interpret and remake principles in particular historical conjunctures.

The development of human rights law is generally presented as a story of progress. This progress is an evolution from an “old” legal regime that did not recognize individual rights to a “new” law (starting with the 1948 Universal Declaration of Human Rights (UDHR)) that anointed all individuals as possessors of internationally recognized rights against their states. Further, the definition of these rights has supposedly expanded over time, adding elements of complementary protection and extraterritorial application.

One crucial difference between migration and other areas is that the web of individual rights woven by human rights law has remained thin for a long time. Migration has long looked like the last bastion of sovereignty while other fields of law became subject to a rights revolution imposing meaningful constraints on public authorities. This essay confronts the legacy of immigration exceptionalism with developments in the European legal space since the 1990s. Catalyzed by the case law of the European Court of Human Rights (ECtHR), human rights eventually have taken center stage in legal and political struggles challenging the power to exclude. The expansion of human rights discourse in contemporary Europe is seen as part of a larger trend. Mutually reinforcing processes of “humanrightization” in law, politics, and everyday practice have given rise to successful claims raised by migrants and other social actors seeking to limit the governmental power of migration control. Humanrightization of migration discourse makes it possible to formulate far-reaching demands for the inclusion of migrants within the framework of the recognized rules of legal argumentation—a “positivist human rights maximalism.”

Embedded in mutually reinforcing processes of “humanrightization” in law, politics, and everyday practice,1 the European Court of Human Rights in Strasbourg (ECtHR, or Strasbourg Court) has become a central actor and forum for conflicts around the inclusion and exclusion of migrants in Europe. The Strasbourg Court has derived specific protections for migrants from the originally “migration-blind” norms of the European Convention on Human Rights (ECHR), such as the prohibition of torture, and respect for family and private life, for example.2 This extension of the ECHR to migrants means that migration control is no longer purely within the discretion of states.

Scholars of international law have been increasingly troubled by states’ vast powers and practices of migrant exclusion. There is no doubt that much of this uneasiness is catalyzed by a keen sense of the demands of a basic liberalism at the international legal order's core. Indeed, the increased construction of border walls,1 the continuously widespread use of deportation as a migration control tool,2 and new digital bordering technologies3 have all come under scrutiny precisely because of the challenges they pose to the notion of supposedly universal entitlements, both substantive and procedural, that often appear disabled or overridden when it comes to the treatment of different sorts of migrants. My goal in this contribution is not to add to such legal critiques, but rather to provide the contours of a broader normative argument to rebuke—or at least complicate—what is often called the state's “right to exclude” all or most would-be immigrants. This right is not just standardly assumed in legal and political practice—indeed, standardly viewed as the linchpin of sovereignty—but has also enjoyed sophisticated defense by liberal political theorists.4 The main goal of my argument is to suggest that anyone with basic liberal inclinations—including political theorists, lawyers, and practitioners of politics—should be able to agree that, under current circumstances, granting states a potent “right to exclude” entails deep tensions with basic moral standards of legitimate authority. This is because the deeply entrenched characteristics and historical background conditions of immigration control today tend structurally to push states to violate the appropriate moral conditions of their legitimate authority to enforce immigration restrictions.5 While moving above and beyond legal argumentation, my hope is that the argument may underscore and give further analytical expression to some of the animating concerns of contemporary legal contestations of states’ exclusive powers and practices.