Alena Monahan: Migration Policy: The Last Bastion of State Sovereignty?
Abstract
A tense divide in international legal theory concerns the abolishment or protection of the foundational framework of state sovereignty in light of recent nationalistic tendencies towards extraterritorial and jurisdictional extension by states and regional bodies through bilateral treaty as the primary approach to migration policy in the name of “securitization,” leading Catherine Dauvergne to pose the question: is migration the last bastion of state sovereignty? Traditionally, immigration policy has largely been respected by international law as a duty of the sovereign state, with the protective principle as the exception to the primary rules of non-refoulment, collective expulsion, torture, and inhumane treatment, and the right to travel, leave and return, all founded in non-positive law.
Rather than abolish or protect sovereignty, this paper, by outlining the extensive legal framework of migration law in both the positive and nonpositive, concludes that migration policy is founded in two duties: one, under the social contract between members and their states, and two, under the basic equality demanded through the political action of Hannah Arendt’s “bare life” triggered by the human rights encounter. Through the examination of the historical dance of circular logic between the two foundations of migration law emerges the dual foundation theory, proposed by Itamar Mann, whose arguments extend beyond moral determinism and urges the adoption of policy that links survival to freedom, basic equality to mutual interest and restricts states from restructuring, eliminating, and reimagining the human rights encounter outside legal choice.
