Yuval Shany and Sir Nigel Rodley
The main thesis of this Article is that the tendency to sweepingly use the human rights discourse in immigration contexts may be misguided. Moreover, the expansion of the human rights discourse beyond its natural and critical scope may have negative results and encourage states to act in ways that may harm important interests of immigrants. The unsuitability of applying human rights discourse to many of the core issues of immigration policy derives from three main reasons: First, is the immanent tension between the moral claims that rights are universal and apply to all individuals, and the fact that actual protection of human rights is the primary responsibility of states. Second, is the related distinction between the basic recognition of a human right and the processes of identifying the nature and scope of the duties such recognition involves. Third, are the institutional implications of choosing between the human rights discourse and discussion of policy questions. Issues determined by rights that have already been regulated can and should ordinarily be decided by independent courts; while issues of policy, especially ones that involve extensive enforcement and administrative structures, should be debated, resolved, and implemented by political players. While there are important aspects of immigration that do belong to core human rights in the strongest sense, most typical immigration issues are not, at this stage, matters of universal human rights.
Contemporary immigration has reinforced calls for minority rights in liberal states, which accrue to immigrants (but also to citizens) qua member of an ethnic minority group. It is often overlooked that such minority rights may be of two kinds: multicultural rights that protect cultural differences or antidiscrimination rights that attack discrimination on these grounds. I argue that the importance of multicultural rights has been greatly exaggerated, and that much of the work attributed to them has in fact been accomplished by group-indifferent individual rights. By contrast, antidiscrimination rights are growing stronger, even in Europe. However, to the degree that it tackles indirect discrimination, antidiscrimination cannot but be factually group-making, even in states that reject multiculturalism.
Stephen H. Legomsky
Given the burgeoning literature on the devaluation of national citizenship and the effects of globalization, the sources and beneficiaries of individual legal rights assume increased importance. This Article seeks to distinguish those legal rights that states should confine to their own citizens from those that flow from residence, immigration status, territorial presence, or simply personhood. Section I examines the very reasons for states to distribute citizenship in the first place. These reasons relate to participatory democracy, immigration privileges, other rights and disabilities, personal emotional fulfillment, building community, continuity over time, sovereignty, and the world order. It finds unconvincing those reasons that rest on the municipal interests of states but, given the present world order, finds those reasons that are rooted in international relations more compelling. Building on those conclusions, Section II considers a second normative question: What are the key variables that should determine whether a given legal right should be confined to citizens rather than made more generally available to all persons or at least selected classes of noncitizens? Section III then illustrates how one country—the United States—parcels out legal rights and examines whether its decisions comport with the demands of international human rights law.
Eugene KB Tan
Singapore’s immigration discourse is deeply influenced by its need to “right-size” its population. As a society that has and remains in need of immigration, contemporary immigration and globalization have rigorously challenged the conventional thinking and understanding of citizenship, as well as notions of who belongs and who does not. Nevertheless, international marriages and pervasive in-and out-migration for purposes of employment, study, and family, conspire to make more pronounced the decoupling of citizenship and residence in Singapore. This transnational dimension sits uncomfortably with the policy makers’ desire for, and the imperatives of, state sovereignty, control, and jurisdiction.
Although one quarter of people living in Singapore are foreigners, concerns of human rights and justice are largely peripheral, if not absent from the immigration discourse. This is seen most clearly in employment issues pertaining to foreign female domestic workers (FDWs), most of who come from other parts of Southeast Asia. ‘Rights talk’ is largely absent even as activists seek to engage the key stakeholders through the subtle promotion of rights for such workers.
The government, however, has resisted framing the FDW issues as one of rights but instead has focused on promotional efforts that seek to enhance the regulatory framework. This dovetails with the reality that immigration law also functions as quasi-family law in which the freedom of FDWs and other foreign menial workers to marry Singapore citizens and permanent residents are severely restricted. As such, the immigration regime’s selectivity functions as a draconian gatekeeper. Justice and human rights are but tangential concerns.
Global justice is a relatively new concept that is being developed both by scholars, who belong to the political school of thought, and by others, who define themselves as cosmopolitans. Whereas political scholars believe that the global implications of justice contemplate states or peoples, cosmopolitans refer to the individual as the subject of justice even when dealing with it on a global scale.
Despite the differences between the two schools, this Article shows that none has clearly called for the imposition of additional obligations upon states that would force them to allow immigrants to enter those states’ territory. Further, our survey shows that the five scholars examined believe that considerations of global justice should compel developed states to offer at least some assistance to burdened or poor states in order to reduce the causes of migration. All differ regarding the type and scope of assistance but agree that the reasons for migration should be reduced in the state of origin.
What is missing in the scholarly works on global justice is a solution to the forced migration of masses of people. This problemcannot be solved, at least in the short run, solely by assisting the state of origin. As long as the lives of the migrants are threatened, states must open their gates to save them and agree that an internationalbody will administer this issue and ensure that the burden is shared proportionally among the various states of the world. Such an international body will also be competent to promote programs of assistance to states, which will in turn reduce the need to migrate.
I argue in this Article that states have two types of moral duties with regard to their intake of immigrants. First, they have a duty to accept quotas of immigrants who have no individual rights to entrance prior to the determination of specific immigration criteria applicable in their case. Second, they have a duty to admit immigrants who are entitled to enter as individuals, namely, refugees and immigrants, who wish to enter the state for family reunification. However, under certain conditions, states could be justified in limiting the entrance of refugees and family reunification immigrants, who might eventually be eligible for naturalization by means of various qualifications and even quotas.
Initially, I defend the complex thesis stated above by rejecting two positions supported by contemporary liberal immigration theorists. One position advocates a cosmopolitan human right to immigration, namely, every single individual’s right to immigrate into any country of his/her choosing. The other position claims that states have a universal right to lock their gates to immigration. Finally, I argue for the middle-ground position stated above.
Immigration often involves the migration of people of specific cultural and religious background to countries in which the predominant cultural and religious background is quite different. This may result in attempts by receiving countries to restrict the new immigrants’ cultural and religious practices. The Article uses the debate surrounding the wearing of the veil in Europe as a test case for the way in which recognition rights may be affected by the process of immigration. First, the Article maintains that the balance of rights and interests involved in conflicts over immigrants’ rights changes along the process of immigration, and divides this process into three stages—the entry application, the application for citizenship, and the life as an immigrant in the receiving country. Subsequently, it lays out the conflicting rights and interests involved in the veil controversy—the conflict between immigrant and local cultures; the conflict between immigrants’ religious liberty and state interests such as maintaining religious neutrality/laïcité, and protecting from the perceived threat of radical political Islam; the conflicting claims regarding the effects of veiling on women’s equality. Finally, the Article analyzes each of these conflicts along the three stages of immigration and offers an assessment of the validity of the conflicting claims surrounding the veil in Europe on the basis of this analysis, claiming that the restrictions on wearing the veil in the public sphere are not justified, but that a much narrower restriction pertaining to some instances of the wearing of the full face burqa can be justified.
The Law of Return grants every Jew the right to immigrate to Israel; this also applies to non-Jewish relatives of Jews. The Citizenship Law grants every such “returnee” automatic citizenship. The wave of immigration from the former Soviet Union in the 90s brought a large number of immigrants not considered Jewish under the definition accepted in Israel. Is this large group of Israeli citizens—who do not, at least formally, belong to the Jewish people—an emerging second substantial national minority in Israel? This Article argues that regardless of formal definitions based on Orthodox religious law under which a religious conversion is the only way for a non-Jew to become Jewish, these immigrants, through their successful social and cultural integration in the Hebrew-speaking Jewish society in Israel, are joining, de facto, the Jewish people. It is no longer true that religious conversion is the only way to join the Jewish people.
Patricia Janet Scotland
Orna Ben-Naftali, Aeyal Gross, & Keren Michaeli