In Search of Normativity: Migrants Navigating Legal Regimes

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Abstract

Transnational migration law is notoriously governed by overlapping legal regimes and jurisdictions. At the same time, in addition to states, transnational administrative networks and non-state agents (including NGOs, militias, smugglers and migrants themselves) are becoming increasingly important actors. This is particularly true for migration in the Mediterranean, which makes it a dynamic site of fragmentation, collisions, and negotiation. The indeterminacy of interaction and resolution of conflicts between different regimes raises not just technical, but also normative problems. This paper will therefore examine the question of the foundations of a normative theory of transnational migration law. Existing approaches to norm collisions tend to adopt the perspective of states, national and transnational courts and bodies, interpreting and applying the law. This risks not only overlooking how states cooperate with non-state actors in migration control, using regime collisions and loopholes to evade human rights obligations. Migrants themselves as well as NGOs are also seeking to shape migration law through legal interventions and their transnational practice. Migrants invoke legal regimes and demand legal guarantees, by the very movement of their bodies. NGOs carry out sea rescues and mobilize courts through strategic litigations. Such interventions point to legal struggles aiming at a politicization of regime collisions by migrants and NGOs, who are both subjectified by law and can use it for emancipation. This paper will argue that we have to integrate the perspective of migrants and NGOs to develop a normative theory of transnational migration law. We therefore propose to analyze their legal subjectivation by different legal regimes in the Mediterranean. We will show that migrants and NGOs are actors who, in navigating legal regimes in the Mediterranean, participate in shaping the law and struggle for their inclusion and exclusion in different legal regimes. A normative theory that is able to reflect on these phenomena can imagine new forms of citizenship on the horizon.

Speakers from the University of Münster

Endemann, Fabian	Professor of International Public Law and International Human Rights Law
Markard, Nora	Professor of International Public Law and International Human Rights Law