Can Human Rights and National Sovereignty Coexist?

Description

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. 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