Race and the regulation of international migration. The ongoing impact of colonialism in the case law of The European Court of Human Rights
| Author | Karin de Vries,Thomas Spijkerboer* |
| Published date | 01 December 2021 |
| DOI | 10.1177/09240519211053932 |
| Date | 01 December 2021 |
| Subject Matter | Articles |
Race and the regulation of
international migration. The
ongoing impact of colonialism
in the case law of The European
Court of Human Rights
Karin de Vries and Thomas Spijkerboer*
Vrije Universiteit Amsterdam, Amsterdam, Netherlands
Abstract
In the case law of the European Court of Human Rights(ECtHR) the right of States to control migra-
tion is firmly established despite strong indications that the effects of migration control are not
racially neutral.In this article we attempt to understand how it is possible that thedoctrine of sover-
eign migration control is not considered to breach the prohibition of racial discrimination. We argue
that the ECtHR’s approach tomigration and racial discrimination fits a pattern in the historicaldevel-
opment of migration law whereby the right to travel, and the power of States to restrict this right,
have been consistently defined in such a way as to protect the interests of the predominantly white
population of today’s global North. Hence, the ease with which the racialised impact of migration
control is accepted as normal and compatible with the prohibition of racial discrimination is consist-
ent with migration law’s long history as part of colonial and postcolonial relations.
Keywords
migration, race, racial discrimination,colonialism, postcolonialism, European Court of Human Rights
1. INTRODUCTION
In the case law of the European Court of Human Rights (ECtHR or Court) the right of States to
control the entry of non-nationals into their territories emerges as a biblical truth. This right was
introduced in the early 1980s as ‘a matter of well-established international law’(as per the
Corresponding author:
Karin de Vries is an Associate Professor of Constitutional and Administrative Law at the Vrije Universiteit Amsterdam;
Thomas Spijkerboer is Professor of Migration at the same university. The authors would like to thank Martijn Stronks,
participants in the Bergen on Zoom Migration Law Seminar (4-5 June 2020) and participants in the Online Seminar Race,
Migration and Human Rights (18-20 November 2020) for their comments on earlier versions of this article.
E-mail: k.m.de.vries@vu.nl
Article
Netherlands Quarterly of Human Rights
2021, Vol. 39(4) 291–307
© The Author(s) 2021
Article reuse guidelines:
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DOI: 10.1177/09240519211053932
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Abdulaziz judgment, see Section 3.1) and has since become one of the pillars of the Court’s reason-
ing in cases concerning the regulation of international migration. While it may seem anodyne to
hold that States can control the entry and residence of aliens, this legal competence has pervasive
effects on freedom of movement. As a result of international migration control, people may be
unable to enjoy family life or their right to property, or to obtain employment or protection
against inhuman treatment. Migration control also affects the position of people who are on the ter-
ritory of a State of which they are not nationals; as foreigners they may be denied access to housing,
work, health care, marriage and other fundamental rights.
Moreover, and of particular concern to this article, there are important indications that the control
of international migration is not racially neutral. When looking at maps on visa requirements, at
datasets of people who have died along migration routes,
1
or at refugee camps in wealthy countries,
it is hard not to notice that the people who are denied legal access to the overall prosperous, devel-
oped and safe countries of the global North are largely non-white.
2
Those who make their way to
the global North nonetheless are often forced to live as precarious or irregularised migrants, without
political rights or access to welfare provisions, while others die trying to get there without access to
safe and affordable travel routes.
Considering these racialised effects of international migration control, and the fact that the pro-
hibition of racial discrimination is widely viewed as one of the most salient norms of international
human rights law,
3
it seems incongruous that a human rights court such as the ECtHR would uphold
the right of States to control migration as they do without much questioning or discussion.
4
However, we argue that the ECtHR’s approach fits a pattern in the historical development of migra-
tion law whereby the right to travel, and the power of States to restrict this right, have been con-
sistently defined in such a way as to protect the interests of the predominantly white population
of today’s global North. In brief, the right to travel into foreign territories was conceived by
European lawyers in the early modern period to enable colonial expansion. Freedom of movement
remained the dominant legal framework for international migration for roughly three and a half cen-
turies, until the end of slavery and decolonisation resulted in a reversal of (voluntary) migration
flows. It was at this point that the Supreme Court of the United States (US Supreme Court) substi-
tuted the doctrine of sovereign migration control for the right to free travel, followed one century
later by the ECtHR. Hence, while ECtHR case law on migration control sits uneasily with the ideal
of non-discrimination, it is consistent when analysed in relation to the power relations established
during colonialism.
Our argument proceeds in two parts. The first examines the historical origins of the doctrine
of sovereign migration control in international law. This historical examination shows how the
1. Tamara Last, ‘Who is the ‘Boat Migrant’? Challenging the Anonymity of Death by Border-Sea’, in Violeta Moreno-Lax
and Efthymios Papastavridis (eds), Boat Refugees’and Migrants at Sea: A Comprehensive Approach (Brill 2016) 79
−116.
2. Thomas Spijkerboer, ‘The Global Mobility Infrastructure. Reconceptualising the Externalisation of Migration Control’
(2018) 20 European Journal of Migration and Law 452; Henk van Houtum, ‘Human Blacklisting: The Global
Apartheid of the EU’s External Border Regime’(2010) 28 Environment and Planning D: Society and Space 957.
3. The prohibition of racial discrimination has even been attributed the status of jus cogens, see Kevin Boyle & Anneliese
Baldaccini, ‘A Critical Evaluation of Human Rights Approaches to Racism’, in Sandra Fredman (ed), Discrimination and
Human Rights: The Case of Racism (Oxford University Press 2001) 144.
4. See also Jean-Baptiste Farcy, ‘Equality in Immigration Law: An Impossible Quest?’(2020) 20 Human Rights Law
Review 1.
292 Netherlands Quarterly of Human Rights 39(4)
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