Undocumented Migrants and the Failures of Universal Individualism
Ramji-Nogales, Jaya, Vanderbilt Journal of Transnational Law
In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. Few have examined international human rights law closely enough to discover just how limited it is in its protections of the undocumented. This Article takes that failure as a starting point to launch a critique of the universal individualist project that characterizes the current human rights system. It then catalogues in detail the protections available to undocumented migrants in international human rights law, which are far fewer than often assumed. The Article demonstrates through a close analysis of relevant law that the human rights framework contains significant conceptual gaps when it comes to the undocumented. It concludes by suggesting three alternate approaches-substantial reform of the current human rights system state-based political responses, and social movements-to protect undocumented migrants and other vulnerable populations.
TABLE OF CONTENTS I. WHAT'S WRONG WITH HUMAN RIGHTS? THE FAILURES OF UNIVERSAL INDIVIDUALISM A. Human Rights Law's Hierarchy of Suffering B. Human Rights Law's Disguised Political Dimensions C. Human Rights Law Obscures Global Inequality D. Human Rights Law Crowds Out Alternative Worldviews II. HUMAN RIGHTS LAW AND UNDOCUMENTED MIGRANTS A. Being Undocumented B. Human Rights from the Perspective of Undocumented Migrants C. The Contested Content of Human Rights Law.. 1. Territorial Security. 2. Procedural Due Process in Deportation Proceedings. 3. Nondiscrimination Based on Immigration Status 4. Family Unity. III. CONSTRUCTING VULNERABILITY: SOVEREIGNTY, GLOBALIZATION, AND HUMAN RIGHTS A. History of Human Rights: Sovereignty Challenged? B. Globalization and Human Rights: Manufacturing the Undocumented Migrant IV. REALIZING A NEW APPROACH TO PROTECTING UNDOCUMENTED MIGRANTS A. Ameliorating the Existing Human Rights Structure: More Universal, Less Individualist B. Long Live Sovereignty?: A State-Based Approach C. Social Movements: Aggregating Interests Beyond the State V. BEYOND HUMAN RIGHTS: ENGAGING WITH SYSTEMIC INJUSTICE
In recent years, advocates and scholars have made increasing efforts to situate undocumented migrants within the human rights framework. (1) Amnesty International's "Immigrants' Rights are Human Rights Campaign" declares that "[a]ll immigrants, irrespective of their legal status, have human rights." (2) The American Civil Liberties Union claims that "[njumerous international human rights documents firmly establish the principle that no human being can be outside the protection of the law or 'illegal' ... [and] that discrimination and abuse based upon immigration status is a violation of human rights." (3) Human Rights Watch goes so far as to suggest that "a human rights framework strongly supports a program of earned legalization for undocumented immigrants in the US." (4) Even Eric Holder, the U.S. Attorney-General, stated recently that "creating a pathway to earned citizenship for the 11 million unauthorized immigrants in this country ... is a matter of ... human rights." (5) In a similar vein, legal scholars have noted that "irregular migrant workers are entitled to the full range of human rights" (6) and that "[m]ost human rights are guaranteed irrespective of an individual's immigration status; they are a function of a person's status as a human being, not as a citizen of a particular state." (7)
The assumption underlying these pronouncements is that international human rights law affords undocumented migrants substantial protection against the mistreatment, exploitation, and abuse they face in their host countries. They even suggest that the undocumented are recipients of specific rights under international human rights law, such as the right to nondiscrimination based on immigration status and the right to regularize their status. …