Looking at two of the key paradigms of the post-Cold War era–national sovereignty, and human rights – this book examines the possibilities for their reconciliation from a global perspective.
The real or imagined fear of a flood of immigrants has caused and fuelled the surge of an amalgam of populist political forces, anti-immigrant movements, and exclusionist nationalism in many developed countries. In the last decade, we have witnessed the emergence of two phenomena in the political and legal spheres. On the one hand, there are liberal globalists asking for respect and the protection of the basic human rights of migrants and asylum seekers and arguing for their civic and social integration into host societies. On the other hand, there are growing calls for a tougher stance on immigration, and powerful populist politicians and governments have emerged in many developed countries. How can the idea of universal human rights survive exclusionist nationalism that uses a populist, unscrupulous approach to its advantage? The contributors to this book explore the meaning of, and possible solutions to, this dilemma using a wide range of approaches and seek appropriate ways of dealing with these normative predicaments shared by many developed societies.
Scholars and students of human rights, migration, nationalism and multiculturalism will find this a very valuable resource.
Author(s): Tetsu Sakurai, Mauro Zamboni
Series: Global Perspectives on Immigration and Multiculturalisation
Publisher: Routledge
Year: 2023
Language: English
Pages: 287
City: London
Cover
Endorsement Page
Half Title
Series Page
Title Page
Copyright Page
Table of Contents
List of contributors
Acknowledgements
Introduction
The origin of the relationship between human rights and national sovereignty
The modernists without a universalizing project?
What drives the contemporary massive waves of immigration?
Synopsis of the chapters
Part I: Tension between national sovereignty and rights of immigrants
Part II: State legislation and the statuses of immigrants
Part III: Human rights and border control
Notes
Bibliography
Part I: Tension between national sovereignty and rights of immigrants
Chapter 1: Human rights to asylum and non-refoulement : Rights of expulsi and suppliants in the system of natural and volitional law formulated by Hugo Grotius
Introduction
1.1 Relevance: asylum and non-refoulement in current international law
1.2 Asylum: is it only a matter of inter-state legal relations in Grotius’s work?
1.3 Admission of expulsi and commercial or colonial endeavours
1.4 Expulsi in the Remonstrantie on the Regulations Regarding Jews
1.5 Expulsi in On the Law of War and Peace
1.6 Political persecution, the political character of asylum, and the rights to an asylum procedure and asylum
1.7 Elements of a comprehensive concept of asylum in Grotius’s work
1.8 Hugo Grotius and precursors of human rights
1.9 Inspirations taken from Grotius for current debates
Conclusion
Bibliography
Chapter 2: Self-determination and immigration control: A critique
Introduction
2.1 Self-determination and the right to exclude prospective migrants
2.1.1 The cultural-nationalist account
2.1.2 The associational account
2.1.3 The democratic account
2.2 Self-determination as non-interference
2.2.1 Border coercion and external legitimacy
2.2.2 The boundary of self-determination may not coincide with state borders
2.3 Self-determination, non-domination, and the international migration regime
Conclusion
Notes
Bibliography
Chapter 3: International borders, immigration, and nondomination
Introduction
3.1 Preliminary matters
3.2 The argument: explanation, defence, and application
3.3 Evaluating the legitimacy of international borders
3.4 A conflict remains
3.5 Some suggestions for making international political boundaries legitimate
Bibliography
Part II: State legislation and the statuses of immigrants
Chapter 4: Law-making to face the migration crisis: Developing legislative policy (analysing the Swedish case)
Introduction
4.1 Three possible models of legislating
4.2 Legislation policy on migration crisis: the Swedish experience
4.3 The judicial model as preferable legislative policy in migration crises
4.3.1 Structural flaws of the administrative model in the migration crisis
4.3.2 Moving towards a judicial legislative model
4.3.3 (Un)feasibility and (un)accountability of the judicial legislative model
Conclusion
Notes
Bibliography
Chapter 5: Can the law create discrimination?: Migration, territorial sovereignty, and the search for equality
Introduction: a conditional right—the two faces of the right to migrate
5.1 Ius migrandi : theory and ideology
5.2 The freedom of cross-border movement and its paradoxes
5.3 The new face of the relationship between migration and sovereignty
Conclusion: the ‘holiness of the cow’ reconsidered
Bibliography
Chapter 6: The gap between constitutional rights and human rights: The status of ‘foreigners’ in constitutional law and international human rights law
Introduction: demystifying ‘no immigration’
6.1 Constitutional history
6.2 Constitutional status of foreigners: The McLean Case
6.3 Constitutional law and international human rights law (1): international oversight of human rights treaty implementation
6.4 Constitutional law and international human rights law (2): domestic implementation of human rights treaties
6.5 Pluralistic, non-hierarchical and circulatory system for human rights protection
6.5.1 Korean residents in Japan
6.5.2 The Technical Intern Training Programme
Conclusion
Notes
Bibliography
Part III: Human rights and border control
Chapter 7: From formalist circumvention to substantive fulfilment: Taking human and fundamental rights seriously in European migration policy
Introduction
7.1 Formalist circumvention as a key feature of European migration policy
7.2 Rules and principles
7.3 Fundamental rights as ‘objective order of values’?
7.4 Do the ECHR and the EU-CFR constitute ‘objective orders of values’?
Conclusions: some consequences for EU migration policy
Notes
Bibliography
Chapter 8: Does international human rights protection trigger a Copernican revolution for immigration law?
Introduction
8.1 The concept of a Copernican Revolution
8.2 The emancipatory dynamic of jurisprudence
8.2.1 Non-refoulement
8.2.2 Right to family life
8.2.3 Right to private life
8.3 Counter-movements in the political and administrative realm
8.4 Counter-movements in courts
8.4.1 Islands: NF, NG, und NM v. European Council
8.4.2 Embassies: X and X v. Belgium
8.4.3 Fences: N.D. and N.T. v. Spain (Grand Chamber)
8.5 Conclusion: clash of different types of revolutions
Notes
Bibliography
Chapter 9: Migration, neighbourliness, and belonging
Introduction
9.1 The ethics of newcomers and old-timers
9.2 Home, neighbourhood, and belonging
9.3 Neighbourliness
9.4 Exit ramps from conflict
9.5 Problems with belonging and prospects for neighbourliness
9.6 Justice, policy, and the ethics of local interaction
Conclusion
Notes
Bibliography
Chapter 10: Reflective inclusiveness as a bridge between human rights and nationalistic attachment
Introduction
10.1 Populist anxiety
10.2 Human rights as the progeny of Biblical Christianity
10.3 The triangular relationship of immigration
10.4 Christian symbols for European governments and courts
10.5 What can the loyalty to cultural symbols protect?
10.6 Primacy of liberty and equality over cultural violence
Conclusion: reflective inclusiveness as a means of resolution
Notes
Bibliography
Conclusion
Index
