Migration As Decolonization: ‘a Matter of Right’

The recent time of global health crisis due to Covid 19 Pandemic has pushed us to think about migration in both domestic as well as in international legal contexts, after seeing the apathy of large numbers of migrants getting stranded at various places either within the country in the States or outside the country at international borders. Herein, this Article will try to challenge an existing approach to domestic migration as well as one particularly contentious form of international migration in particular to India and Europe, as an important first step toward a novel and more ethical way of approaching problems of the movement of people across borders national as well international borders. The prevailing doctrine of state sovereignty under international law today is that it entails the right to exclude non-nationals, with only limited exceptions, which is not applicable in domestic cases of migration as in countries like India or EU nations on an identity basis, with strict liability of the government under constitutional legal mandates to provide the facilities to the stranded migrants in such a situation of danger to life. International refugee law and international human rights law impose restrictions on states’ right to exclude non-nationals whose lives are endangered by the risk of certain forms in their countries of origin, no similar protections exist for economic migrants. This formulation of state sovereignty, which justifies the assertion of a largely unfettered right to exclude economic migrants especially the ones with minority status such as in EU Countries the people not belonging from Christian origins has been challenged. It argues for a different theory of sovereignty that makes clear why migrants of a certain kind have compelling claims to national admission within States and outside States and compulsion for inclusion that today unethically excludes them.