Finding a Place for Marginal Migrants in the International Human Rights System

• Published date: 03 August 2011
• DOI: https://doi.org/10.1108/S1059-4337(2011)0000056006
• Pages: 67-90
• Date: 03 August 2011
• Author: Leila Kawar

FINDING A PLACE FOR

MARGINAL MIGRANTS IN

THE INTERNATIONAL HUMAN

RIGHTS SYSTEM

Leila Kawar

ABSTRACT

This chapter examines how international human rights law is shaping the

politics of immigration. It argues that migrant human rights are neither

conceptually nor practically incompatible with an international order

premised upon state territorial sovereignty, and that the specific aesthetics

of the contemporary international human rights system, namely its

formalistic and legalistic tendencies, has facilitated its integration with a

realm of policymaking traditionally reserved to state discretion. An

exploration of two areas in the emerging field of migrant human rights

traces the multi-scalar transnational legal processes through which these

norms are formulated and internalized.

INTRODUCTION

In the ‘‘golden period’’ of human rights (Falk, 2009) that followed the end

of the Cold War, a number of citizenship and immigration scholars

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Studies in Law, Politics, and Society, Volume 56, 67–90

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2011)0000056006

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announced that international human rights norms would soon transform

the politics of migration. Arguing provocatively against Arendt’s claim that

‘‘rights of man’’ are nil if not encoded in citizen rights by nation-states, they

posited that the spread of human rights discourses would create a new place

for ‘‘guests and aliens’’ within the law. The ‘‘transnationalization’’ of the

legal regime most intimately tied to the principles of state territorial

sovereignty was seen to herald a new world order in which human rights

would replace citizenship as the primary marker of political affiliation.

While some of these analyses centered on the discursive implications

of changes in national laws allowing migrants access to social services

programs (Layton-Henry, 1990;Soysal, 1994), others were more juridically

oriented, arguing that international legal regimes would imminently

overpower restrictionist immigration laws. Among the more ambitious of

these transnationalist claims was Saskia Sassen’s suggestion that the

distinction between the citizen and the alien was being eroded as part of a

more general reformulation of territory, authority, and rights that she linked

to structural changes in the global economic system (1996). Sassen argued

that in the new transnational order based on human rights, and enforced

through international law, even unauthorized migrants would be able to

claim rights to residence and to family reunification. David Jacobson made

similar claims (1996), arguing that the contemporary phenomenon of

intensive transnational migration undermines the relevance and legitimacy

of nationally based models of membership. According to Jacobson,

international human rights codes and institutions provide a new model

that is more appropriate to current conditions. He suggests that the

judiciary is playing a crucial role in this development by encouraging

individuals and NGOs to make claims on the basis of international human

rights instruments.

However, not all scholars have been so optimistic about the capacity of

human rights norms to transform immigration policies. One set of criticism

is based on a perceived irreconcilability at the conceptual level between

human rights and immigration control. The contemporary international

human rights system, whether embodied in the United Nations (UN) or in

regional treaty-based structures, is built upon agreements between nation-

states who enjoy complete sovereignty in matters of citizenship. Because

they exist only upon the concession of nation-states, the rights of aliens bear

the heavy mark of the state’s immigration powers and are destined to remain

‘‘stratified and reversible’’ (Joppke, 2010). Obligating states to grant rights

to immigrants is conceptually incompatible with a fundamental premise of

the international system.

LEILA KAWAR68