International Migration and Global Justice

Satvinder Juss

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317113973
• Edition: 1
• Topic: Derecho
• Subtopic: Jurisprudencia

How should international law approach the critical issue of movement of peoples in the 21st century? This book presents a radical reappraisal of this controversial problem. Challenging present-day ideas of restrictions on freedom of movement and the international structure that controls entry to states, it argues for a new blueprint for international migration policy that eliminates waste, aids both developing and developed societies and brings attendant benefits to voluntary migrants and involuntary refugees alike. In a world of increasing disorder, it is suggested that current policy only adds to international instability and threatens the interests of a functional global community.

1 Rediscovering International Morality

INTRODUCTION

Freedom of movement is ‘the first and most fundamental of man’s liberties’.1 Without it, other rights are precarious. Universally recognized values, such as mutual aid, humanity, hospitality, comity, mutual intercourse, and good faith, all depend on the right to free movement for their efficacy. The world order depends on freedom of movement. Whether one is looking at the encouragement of peace by the easing of demographic pressures, or the enrichment of national cultures, or the redistribution of economic resources, or the pursuit of humanitarian objectives, freedom of movement has a central role to play in the modern global order.2 All are fundamentally interconnected and indivisible from one another.

Freedom of movement is enshrined in the foundation document of the human rights movement. The Universal Declaration of Human Rights 1948 affirms that ‘Everyone has the right to freedom of movement and residence within the borders of each state’3 and that ‘Everyone has the right to leave any country, including his own, and to return to his country’.4 More specifically, it declares that ‘Everyone has the right to seek and to enjoy in other countries asylum from persecution’.5 The Preamble of the 1948 Declaration proclaims this Charter of Rights ‘as a common standard of achievement for all peoples and all nations’ and goes on to declare that ‘the rights and freedoms’ therein are to be enjoyed ‘without any distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.6

The economist J.K. Galbraith, once said, migration is ‘the oldest action against poverty’.7 The history of peoples’ struggle to survive and to prosper is rooted in the history of migration.8 Their struggle to escape insecurity and poverty is also best epitomized in the history of migration. And their readiness to move in response to opportunity is also most clearly reflected in migratory movements. Migration has caused 175 million people today, or just under 3 per cent of the total population of the world, to live outside their country of birth.9 Freedom of movement has come to be seen as one of the necessary goods of life. Free movement begets a free life. A free life means better life chances for the individual. Where an individual lives determines a person’s life, liberty, and well-being. Free movement as a fundamental right recognizes ‘the ageless quest of individuals for a better life everywhere’.10 The access to a foreign territory is a necessary component of the right to free movement. This is because it enables individuals everywhere to have the essential alternative of participating in the social processes of another state in an effort to develop their own freedom and appreciation of life.11

Freedom of movement, and particularly the freedom to move to another territory, can therefore be said to be a basic human right, like the right to be free from ‘arbitrary interference with a person’s privacy, family, home’ or to be free from attacks on his ‘honour and reputation’;12 or ‘the right to marry and to found a family’;13 or the right not to be discriminated against,14 all of which are also enshrined in the Universal Declaration of Human Rights. More than 30 years ago, Roger Nett wrote that:

[w]hereas, in the past, civil rights were defined largely as devices by which people might escape from tyranny and direct abuse, the right of people to equal opportunities is rather clearly the underlying theme of all civil rights today. We still talk about free speech, religion, and the right to vote as though they were ends in themselves, and indeed they can be. But people have become conscious that their purpose in seeking or maintaining them is to equalize opportunities, to make possible a life that would otherwise be denied, and that it is in this sense that we are most likely to define justice today.15

In the words of Michael Dummett, the Emeritus Professor of Logic at the University of Oxford, there is a distinction to be made between what a person ‘deserves’ and what is his ‘due’. As he explains, ‘There are some things which are everybody’s due. The basic conditions that enable someone to live a fully human life are due of every human being, just in virtue of being human: these are what are nowadays called “human rights”’.16 It seems to me that these are all ‘dignity rights’ inherent in a meaningful human existence predicated on the moral equality of all human beings. But I propose to argue here that it is less well recognzied that the right to free movement is integral to the enduring existence of liberal democracies. It is central to how democratic states conceive of, and sustain themselves. This is because liberal democracies extol the virtues of civic equality. As Ruth Rubio-Marin states if ‘liberal democracy is to remain alive’ then affluent and industrialized Western society must critically question its policies of the ‘degrees and kinds of exclusion of non-national residents’.17 One may be driven to the conclusion, as Christian Joppke is, that ‘accepting unwanted immigration is inherent in the liberalness of liberal states’ given that today ‘[u]nder the hegemony of the United States, liberalism has become the dominant Western idiom in the postwar period, indicating a respect for universal human rights and the rule of law’.18 Paradoxically, liberal scholars recognize the existence of a post-national order. Yet, they still start from the premise of closed societies rather than the democratic concepts of civic equality. Liberal scholars, it seems to me, need to be more intellectually robust and less intellectually hamstrung in this. Indeed, according to Professor Rubio-Marin, discrimination against non-nationals cannot be right because the commitment to a liberal and democratic legal order must be measured by inclusiveness, to which the concept of closed societies is anathema.19

A similar point has been rather refreshingly made by Professor Kevin Johnson who argues that legal scholarship generally treats closed borders as the assumed state of immigration law, with the law facilitating the efficient, fair and rational administration of a comprehensive system of immigration controls. In an eloquent analysis of US law, Johnson makes a case for ‘open borders’ and articulates arguments for eliminating the border as a legal construct that impedes the movement of people into the US declaring that politicians, activists, and scholars have not seriously considered opening the borders to all comers.20

Whether or not borders should be thrown open, in my view the case for an open system of immigration controls is unassailable simply because the concept of closed societies is repugnant to the very idea of international mutuality, communality and solidarity. This may sound polemical. It is not. It is forgotten that in 1892, in the heyday of European restrictionism, the Institute of International Law proposed the International Regulations on the Admission and Expulsion of Aliens,21 a liberal instrument designed to establish a state’s duty to admit aliens. The legal right of a state to control the admission of aliens, as ‘a logical and necessary consequence’ of its sovereignty and independence, was tempered by the obligations of ‘humanity and justice’.22 Sovereign states, while protecting their security, had to have regard to the right and liberty of foreigners wishing to enter its territory. Its key provisions are worth recounting. They are even more relevant to the international community today than they were over a hundred years ago in a fractious, unstable and uncertain world, that is in dire need of re-discovering the principles of international morality:

ARTICLE 6. Free entrance of aliens to the territory of a civilized state, may not be generally and permanently forbidden except in the public interest and for very serious reasons, for example, because of fundamental differences in customs or civilization or because of a dangerous organization or gathering of aliens who come in great numbers.

ARTICLE 7. The protection of national labor is not, in itself, a sufficient reason for non admission.

ARTICLE 12. Entrance to a country may be forbidden to any alien individual in a condition of vagabondage or beggary, or suffering from a malady liable to endanger the public health, or strongly suspected of serious offences committed abroad against the will or health of human beings or against public property or faith, as well as to aliens who have been convicted of the said offences.

The reference to ‘free entrance of aliens’ by ‘a civilized state’ in a way that is not ‘generally and permanently forbidden’ is refreshing in the light of the subsequent failure of twentieth century international instruments to match such values, let alone develop them any further; as is the principle that the ‘protection of national labor is not, in itself, a sufficient reason for non admission’. Of course, restrictions may be imposed by a sovereign state but only if this is ‘in the public interest and for very serious reasons’, and the examples of ‘public health’ and the suspected commission of ‘serious offences’ serve to highlight the bases upon which exclusion of aliens may be properly justifiable.

Exclusion on the grounds ‘of fundamental differences in customs or civilization’ is anachronistic today in an era of anti-discrimination laws and increased international inter-dependency and the globalization of culture, although it is accepted that some would disagree. Even so, it is difficult not to conclude that this is racially discriminatory and inherently inconsistent with the very idea of ‘free entrance of aliens’ which is ‘not [to] be generally and permanently forbidden’ by ‘a civilized state’. This was an issue that the international community could have more imaginatively tackled in the twentieth century. Unfortunately, the Eighth Commission of the Institute decided, having drafted the regulations, not to adopt them in favor of a more limited sovereign right of the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgements
• Foreword
• Select List of Cases
• Dedication
• 1 Rediscovering International Morality
• 2 Recognizing Free Movement
• 3 Common Utility and Justice
• 4 The Failed States Phenomenon
• 5 Tackling Forced Displacement
• 6 Conceptualizing Refugees
• 7 The Burden of Burden-Sharing
• 8 Migration and Global Development
• Select Bibliography
• Index