Undocumented Disobedients as a Special Class of Civil Disobedients

Abstract

In this chapter, I address the status of undocumented global migrants and refugees as justifiably exercising a moral right to disobey, grounded in the international decency standard of the Law of Peoples. They are a special class of disobedients insofar as their everyday acts of participation in the domestic system of cooperation of the country in which they have no legal right of occupancy are obviously disobedient. Nevertheless, these acts do not conform to the established definition to civil disobedience, especially the publicity of civilly disobedient acts as condition of their justifiability. Consequently, it becomes necessary to explain why ‘undocumented disobedience’ is properly a mode of civil disobedience. To this end, I demonstrate that such disobedience is indeed legitimate under the Law of Peoples. I argue by analogy with the case of refugees that undocumented migrants are equally vulnerable to the abuses of domination and persecution. In the case of the undocumented, however, they not vulnerable to these abuses in the country they leave, but rather the country they enter without official documentation. In particular, they are vulnerable to overlapping forms of interpersonal and systemic domination and persecution by citizens who exploit their well-founded fear of reporting to the immigration authorities and suffering deportation. I argue that vulnerabilities to domination and persecution, based on exploitation of this fear, establish an urgent human right of the undocumented to protection under the rule of law that violate the principle of reasonable rejection. In this respect, I emphasize that it is already a well-established principle of international law that refugees are entitled to protection of their urgent human rights. This is the principle of non-refoulement: that those seeking refuge from domination and persecution should not suffer returned the countries they have left. Nevertheless, I argue that this principle does not apply to the undocumented, insisting on a normatively relevant between the latter and refugees. That said, however, I argue that peoples owed undocumented at least minimal participatory rights in contesting deportation decisions, as a requirement of decency and non-domination. Such contestatory rights are sufficient to overrule the so-called plenary powers of the state to deport non-citizens, absent due process of law, on grounds of protecting the sovereign right of a people to control its own borders.