An essential characteristic of sovereignty is the State’s prerogative to put various kinds of limitations on non-citizens regarding their stay and entry in their territory. The authority of the State to control movement of aliens into its border has escalated problems of refugees and asylum seekers worldwide. Strict migration control has escalated problems of forced state confinement with possibility to continue in the future. In this erudite research article, Amit takes a hard look at the notion of the sovereignty of the state vis-à- vis the human rights of refugees. This is a special feature of Different Truths on World Refugee Day (WRD).
This article focuses on the current debate on the State’s (state with capital ‘S’ denotes the Nation-state) sovereignty. Further, it discusses how on the basis of sovereignty the State justifies regulating migration control, detention of refugees, asylum seekers and violations of refugee’s rights. Article concluded the State is not longer sole arbitrator of people’s lives, especially in the times of globalisation and international human rights movement.
Sovereignty provides the States an unchallenged authority to regulate migration movement and control over land and its natural resources. Ideas of sovereignty boost the state system and help the States justify restriction on refugee’s human rights. On the basis of jurisdictional sovereignty, the States detain and deport refugees and asylum seekers – by employing immigration law. As Dauvergne (2003) said: the sovereignty, contemporary migration law, and immigration control is embedded in essence of the nations. Thus, the State’s sovereignty is at the core of refugee problem. Solutions to refugee problems very much lie in the States compromising its sovereignty to accommodate ‘others’ in their territory.
Concept of the Sovereignty
Authority of the State to control movements of aliens within its jurisdiction derives from well-established notion of the sovereignty, which constitutes main entity in subject of International Law. Concept of sovereignty emerged in the middle age but it was the treaty of Westphalia (1648), which made territorial State a cornerstone of modern State system (Morgenthau 1985, cited in Bagaric and Morss 2005, p. 28). However, Brand (2002, cited in Bagaric and Morss 2005, p. 28) stated that sovereignty in the middle age was an unthinkable thing when notion of singular Respublica Christianity (the pervasive unity of god) was prevalent. During the era of Reformation, the concept of supremacy of the god was superseded by the absolute power of king, and their sovereignty became equated with the sovereignty of the State. Events that occurred during the Reformation Period were crystallised in unified structures of the State, which was an order based in spatial exclusivity (Goodhart 2005, p. 37). The State’s independence from any external and superior power which was the prevailing idea in the early modern period strengthened the notion of sovereignty. State system increasingly expanded in nineteenth century and gained remarkable force during the anti-colonial self-determination movement during the period of 1945 to 1990, where number of States around the world doubled (Warbrick 2003, p. 205). And so is their immense power to control of aliens and non-aliens in their jurisdiction had increased.
Benhabib (2004, p. 6) suggests that even though the States were losing their sovereignty through the various actors of globalisation (economic, military, technological change), the States had become more assertive to keep the aliens, refugees, and asylum seekers out of their borders.
Sovereignty and Migration Control
Jurisdictional sovereignty allows the States to pass immigration laws; and, it has been considered an essential sovereign act of the State. Since development of the modern states from the fifteen century onwards, governments have regarded control over their borders as core of the sovereignty. An essential characteristic of sovereignty is the State’s prerogative to regulate the stay and entry of people within their geographical border. Many countries put various kinds of limitations on non-citizens regarding their stay and entry in their territory.
The authority of the State to control movement of aliens into its border has escalated problems of refugees and asylum seekers worldwide. Strict migration control has escalated problems of forced state confinement with possibility to continue in the future (Bagric and Morss 2005, p. 27). Nevertheless, issue of migration control has been less debated and discussed among modern political thinkers except few exceptions. It was mostly taken for granted that the State sovereignty implied the right to control movements of person across borders, choice of residence within a state, and freedom to leave any state which had become accepted only after the Second World War (Baubock 1995, p. 551).
The prerogative of the States to control migration flow was affirmed in “1881 Musgrove vs. Chun Teeong Toy” decision by the Privy Council, and in 1892 “Nishimura E vs. United States” case where the United States Supreme Court declared, “Every sovereign nation has power as inherent in sovereignty to forbid or admit foreigners within its domination” (Plender 1972, p. 51). At the same time, the International Regulation on the Admission and Expulsion of Aliens (1892) called for limitation of the State sovereignty in regards to migration flow. Regulation called upon the States to extend rights and liberties to foreigners (Nafziger 1983, cited in Schindlmayr 2003, p. 111). However, the States continue to assert on the sovereignty issue, while dealing with subject of migration (Martin 1997, cited in Schindlmayr 2003, p. 119).
In current scenario, subjects of refugee law such as undocumented migrant workers and skilled migration are impinging upon the sovereignty of the State. Therefore, the States, in desperate attempt to assert its authority, uses migration as a tool to regulate movement of people. Nonetheless, the State sovereignty has hindered movements of asylum seekers and refugees. Most policies dealing with migration are nationally oriented and lacking a global approach and universally acceptable framework.
Detention and Migration Control
Above discussions show reasons and causes as to why the State authority controls entry-exit of every person within its jurisdiction. Using jurisdictional sovereignty concept, the States control migration flows within their jurisdiction and punish people upon breach of their domestic laws. Consequently, breaking immigration laws usually results in detention of refugees and asylum seekers. Currently, the States are using detention as a tool to deter refugees and asylum seekers from entering into their territories under the garb of national security threat (Economic and Terrorism) and ‘refugees pull factor’. Detention proponents focus on discouraging illegal immigration and removing aliens who commit crimes (Legomsky 1999, p. 1). They consider detention as a deterrent against illegal immigration. Contrastingly, some human rights activists and refugee scholars emphasise the liberty interest at stake, the cruelty of indefinite detention in inhumane condition, and the huge expenses spent on detention management (Kerwin and Wheeler 1998, cited in Legomsky 1999, p. 1).
Migration control and punishment of refugees and asylum seekers go hand in hand. In fact, detention is a direct consequence of migration control policy of the state.
Emerging Challenges in Migration Control and the State Sovereignty
Though in a colloquial term ‘refugee’ has existed since time immemorial; “the need for a strict refugee definition is the product of modern immigration law (Kagan 2005, p. 15)”. Immigration laws came into existence mainly to weed out noncitizen, refugees, asylum seekers, and migrant workers primarily from poor countries. Migration mechanism through immigration law regulates entry and stay of foreigners. Currently idea of controlling movement of people is facing strong challenges from contemporary phenomena of refugee flow and illegal migration. However, sovereignty, contemporary migration law, and immigration control is embedded in essence of the nations (Dauvergne 2004, p. 590). This is apparent in the relationship of migration law and national identity in place of migration laws within liberal accounts of national community and in close linking between migration law provisions and sovereign powers. Contemporary migration laws are discriminatory and selective in weeding out immigrants by imposing, who are family members under the family reunion and by admitting immigrants on their professional worth in order to cater the imminent needs of the country.
There is consensus among some scholars that rules for opening or closing border are the matter of national self interest. Waltzer (1983, p. 10) is in favour of a closed border but argues that those who share the same cultural homogeneity should be allowed to enter into the state. Galloway (1993, cited in Dauvergne 2004, p. 591) argues that needy persons, if morally responsible can be admitted into the State. Carens (1987, p. 251) suggests that in the interest of national self-preservation, the State can admit non-citizens. Furthermore, a number of scholars, who have questioned the unchallenged supremacy of the States (Ohmae 1995, p.11).
Ohmae (1995, p. 34) is of opinion that nation states are losing their meaningful participation in global economy whereas Weiss (1998 cited Dauvergne 2004, p. 593) stressed that nation states will gain more momentum in future. Meanwhile, Sassen (1996, p. 144) believes that “there is partial denationalization of national territories that has affected the State’s sovereignty.” Sassen’s analysis is based upon the fact that power of the State’s decision making is diminishing in current international economic system. The States are no longer free to take their decision without considering their economic ties with global institutions like World Bank and International Monetary Fund, who in turn, can interfere and influence domestic policies of the States in exchange with economic favor.
Benhabib (2004, p. 10) considers that State is “no longer the ultimate arbiter of fate of citizens and resident.” The State’s behaviour is constantly under the scrutiny of internationally recognised norms, which forbid mass expulsion, genocide and enslavements.
Conversely, some scholars see Nation-states becoming more powerful, whereas others think that decline in the State’s power are imminent due to globalisation.
However, outcome of this debate is enough to substantiate the fact that human being is more important than they were in the past. Nonetheless, people remain nationalised and are being controlled by the States through means of passport, visa, residence permit and labour qualification (Ruggie 2003, pp. 187-211). While Hirst and Thomsons (1999, cited in Dauvergne 2004, p. 593) view question of immigration as still having vital place in the State system; Sassen (1996, p. 88), on contrary, thinks that international human rights now have more influence over national immigration decision-making. Moreover, Martine (1989, p. 572) believes in the admittance of noncitizens into the state territory while Opeskin (2009, p. 7) stresses that the States are obliged to admit its own nationals and refugees into their territory. The States consider these emerging trends (admittance of citizen and refugee into its territory) as a challenge to their sovereignty and migration control.
Human Rights and Migration Control
There has been opposite views expressed by various scholars on issue whether or not human rights have influenced migration laws and refugee discourses. The human rights doctrine emerged to counterbalance highly centralized and reinforced power of sovereign states.
Wong (2010, p.1) reckoned that wide consensus on core principles of human rights, intense propagation of the international laws, and establishment of human rights institutions represents emerging power of human rights discourse which had made fundamental changes in the way states control movement of people within its border. In like manner, Habibi (2004) announces that “States need to observe human rights and should subscribe the rule of law.”
Supporting this view, Sassen (2002, p. 15) consider that the States are responsible for mainstreaming human rights into their domestic law, which can empower immigrants and refugees. Contrastingly, Schiendlmayr (2003, p. 119) believes that human rights system was not intended to control the entry and existence of refugees.
Wong (2010, p. 1) deems that the States are making strategic use of human rights discourse exclusively to protect rights of their citizen and to exclude ‘others’. Due to increased restrictive immigration policy, non-citizens, asylum seekers, and refugees are being detained and deported. Consequently, this situation has led to “human rights crisis.” Challenging this notion, Coicaud and Gardner (2003, p. 117) are of opinion that the States cannot violate human rights of a person because the legitimacy of the sovereigns depends on respecting the human rights of a person.
However, the State’s sovereignty is being penetrated by the multinational giants influencing the State’s absolute control over the increased migration flow. Sassen (2002, p. 16) has argued that the State power is being limited by supranational organisations and international human rights treaty and laws; therefore, the State is gradually losing its dominance to control the migration flow. However, reality presents a different situation. Even though the discourse of human rights and refugee rights are gaining momentum, Wong noticed (2010, p. 18) that “for millions of asylum seekers and refugees, human rights regime [still] appears to remain inaccessible.” Wong (2010) is sceptical about the efficacy of human rights treaties because the States are unwilling to rectify human rights instruments due to increased cross border movement of people. Schindlmayr (2003, p. 120) suggests that in order to deal with the issue of cross border migration, the States need to compromise their sovereignty, otherwise, problems of refugees and asylum seekers will remain unsolved.
Final Note
While the State is still important, its role is presently being redefined in the context of globalisation and human rights discourse. The States are not completely toothless under the emerging global forces. Those States do not subscribe to an adaptive approach towards the impact of human rights discourse like the States and multinational corporations, or refugees and asylum seekers may find themselves increasingly isolated in borderless world by the world community. On the basis of sovereignty, the State cannot defend harsh measures against refugees and asylum seekers. For the purpose of solving refugee’s problem, the State needs to shed some of its sovereignty in rectifying international human rights instruments, in especting its human rights obligation and accommodating refugees and asylum seekers.
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©Amit Singh
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