Abstract
In the case law of the European Court of Human Rights (ECtHR) the right of States to control migration is firmly established despite strong indications that the effects of migration control are not racially neutral. In this article we attempt to understand how it is possible that the doctrine of sovereign migration control is not considered to breach the prohibition of racial discrimination. We argue that the ECtHR’s approach to migration and racial discrimination fits a pattern in the historical development of migration law whereby the right to travel, and the power of States to restrict this right, have been consistently defined in such a way as to protect the interests of the predominantly white population of today's global North. Hence, the ease with which the racialised impact of migration control is accepted as normal and compatible with the prohibition of racial discrimination is consistent with migration law's long history as part of colonial and postcolonial relations.
Highlights
In the case law of the European Court of Human Rights (ECtHR or Court) the right of States to control the entry of non-nationals into their territories emerges as a biblical truth
Considering these racialised effects of international migration control, and the fact that the prohibition of racial discrimination is widely viewed as one of the most salient norms of international human rights law,[3] it seems incongruous that a human rights court such as the ECtHR would uphold the right of States to control migration as they do without much questioning or discussion.[4]
We show how the Commission and the Court have upheld the right of States to regulate the entry of aliens and have generally turned a blind eye to the racialised effects of international migration control, to the disadvantage of people from the global South
Summary
See Section 3.1) and has since become one of the pillars of the Court’s reasoning in cases concerning the regulation of international migration. When looking at maps on visa requirements, at datasets of people who have died along migration routes,[1] or at refugee camps in wealthy countries, it is hard not to notice that the people who are denied legal access to the overall prosperous, developed and safe countries of the global North are largely non-white.[2] Those who make their way to the global North are often forced to live as precarious or irregularised migrants, without political rights or access to welfare provisions, while others die trying to get there without access to safe and affordable travel routes Considering these racialised effects of international migration control, and the fact that the prohibition of racial discrimination is widely viewed as one of the most salient norms of international human rights law,[3] it seems incongruous that a human rights court such as the ECtHR would uphold the right of States to control migration as they do without much questioning or discussion.[4] we argue that the ECtHR’s approach fits a pattern in the historical development of migration law whereby the right to travel, and the power of States to restrict this right, have been consistently defined in such a way as to protect the interests of the predominantly white population of today’s global North. We show how the Commission and the Court have upheld the right of States to regulate the entry of aliens and have generally turned a blind eye to the racialised effects of international migration control, to the disadvantage of people from the global South
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