Publication Date

2024

Abstract

The development of human rights law is generally presented as a story of progress. This progress is an evolution from an “old” legal regime that did not recognize individual rights to a “new” law (starting with the 1948 Universal Declaration of Human Rights (UDHR)) that anointed all individuals as possessors of internationally recognized rights against their states. Further, the definition of these rights has supposedly expanded over time, adding elements of complementary protection and extraterritorial application.

However, at least as it concerns border-crossing, this standard genealogy is wrong. The story of human rights is, in fact, one of retreat—a contraction of individual rights to mobility. This retreat is most evident when analyzing through the prism of state duties rather than individual rights. Through this lens, the regime has evolved from an “old” law that imposed upon states a duty to admit certain migrants and prevented them from excluding aliens to a “new” law that assumes a state’s fundamental right to exclude and to expel all aliens, even if they are peaceful and needy foreigners.

Importantly, despite this change in normative frameworks, the outcomes on the ground remained constant: elites, generally white Westerners, maintained mobility privileges and therefore access to legal rights, while other groups continued to be excluded from movement and hence also from legal visibility.

To tell this story of contraction, I briefly compare the international legal regulation of mobility in two eras: the late nineteenth century (the period commonly associated with the birth of modern “professional” public international law), and the current post-1948 legal era.

Document Type

Article

Publication Title

AJIL Unbound

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