The Continuing Relevance of the Convention?

Abstract

If people were money: writing over 30 years ago, Goodin and Barry pointed to a then already visible paradox. Whereas the modern economy was becoming global, increasingly being rooted in the free movement of capital across borders, free crossborder movement was still denied to peoples. Today, the paradox is unbearable: discord is not simply attributable to the fact that law, evermore global in character, now makes support for the free movement of capital one of its primary purposes yet continues to subject the free movement of peoples to severe restrictions. Instead, a process of paradigm shift would similarly appear to be dictated by the inclusion of peoples and—above all, their movement—within the determining contours of the emerging global economy. Where the economic steering capacities of the modern state have been severely curtailed and where economic success is measured in terms of competitive capability, labour flexibility—at its core, labour mobility—takes on its own distributive function, acting not only as competitive motor, but also as arbiter for allocative efficiency, or in modern judicial thinking, as a harbinger for ‘allocative justice’. Far outside the reach of the Refugee Convention (1951), post-national law has accordingly had its own disintegrative impacts upon traditional mechanisms of sovereign national border control, for example, redefining cross-border migrants as