The Madness of Migration: Disquiet in the International Law Relating to Refugees

Abstract

Teachings about the importance to health of avoiding extremes and containing pathology have long nourished practices of governance and theories of legal order. The maxim everything in moderation continues to animate popular and professional attitudes about health, including ideas about the supposed importance to States' economic, social and political health of containing or repelling asylum-seekers. At the same time, a notion has prospered among refugee lawyers that international refugee law operates as a restorative, tempering or disciplinary influence upon immoderate State action (or inaction) in this context. International refugee law often features in such accounts as an actual or potential deus ex machina. This article works against this redemptive characterization of international refugee law in relation to action (or inaction) on the part of States. Instead, it explores an intuition that international refugee law tends to foster a sense that multivalent allegiance and migratory diffusion are deviant, unnatural impulses. International refugee law is, this article contends, as much a producer of instincts associating migration with pathology as it is their ostensible therapy. This argument is elaborated through close analysis of judicial readings of international refugee law in U.S., Canadian and Australian courts.

Keywords: International law, refugee law, migration, asylum, international legal theory