Why Human Rights Fail to Protect Undocumented Migrants

In: European Journal of Migration and Law

Abstract

In this article, I depart from the factual difficulties of undocumented migrants to access a state’s protection mechanisms for avowedly universal human rights. I relate this aporia to two competing conceptions of territorial jurisdictions. Drawing on the Convention on the Rights of the Child and the Migrant Workers Convention, I separate the sphere of the political community (the polis) and that of the house-hold (the oikos) in developing a political theory of undocumented migration. It rests two central tenets: one is a tributary transaction between sending state and host state, in the course of which the undocumented migrant worker is offered without conditions attaching, yet with the hope of remittances flowing in return. This offering relates to the oikos, which makes available a limited degree of protection under labour law. The second is a contractual form of submission by the undocumented migrant worker, which is structurally analogous to the master-slave relationship developed in Hobbes’ defense of war slavery. This is related to the polis, which denies all meaningful political activity to the undocumented migrant (as reflected in the denied right to found labour unions). Finally, drawing on Werner Hamacher’s work, I analyse how human rights are intrinsically related to a position of privacy, which escalates into a form of isolation under the structures producing undocumented migrants.

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