The right to have rights of undocumented migrants: inadequacy and rigidity of legal categories of migrants and minorities in international law of human rights

Abstract

ABSTRACT This article engages with the legal and political discourses aiming to respond to the increasing presence of undocumented migrants in the European Union. It focuses on legal consequences of the discursive framing often portraying undocumented migrants as a group ‘unworthy of social, economic, and political rights’ as opposed to those considered genuine refugees. The article explores the opening brought by the group approach to undocumented migrants and asks whether such a group perspective could be used as a basis for recognition of group-based rights of undocumented migrants. With reference to Jacques Rancière’s conception of dissensus the article discusses the arbitrariness, inadequacy and historical contingency of legal categories of migrants and minorities in international human rights law and focuses on the existing openings in the minority protection standards in international and regional instruments. These include the strong non-discrimination focus of minority protection; the ongoing process of broadening of the minority protection encompassing also non-citizens; and the alternative theories of minority protection. Such an approach allows for experimenting with existing legal categories approaching the rights of undocumented migrants from the minority protection perspective, revealing their rigidity and dependence on the nation-state system.