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Speaker: Ruth Gavison, Haim H. Cohn Professor of Human Rights, Faculty of Law, Hebrew University
In her lecture, "Immigration Policy: Sovereignty, Humanitarian Law, or Human Rights?" Professor Ruth Gavison attempted to analyze the framing of and discourse around immigration. In particular, Gavison was interested in determining whether the recent trend towards bringing the language of human rights to bear on this problem is a good one.
Gavison began by arguing that immigration is one of the most powerful, interesting, and complex issues we face in contemporary society. The decision to immigrate is of course a very difficult one that carries great costs, both for immigrants and for the host country. More importantly, immigration also raises questions about a whole host of more abstract issues: the autonomy of states, the meaning of citizenship, and the idea of a political community. For all of these reasons, then, it's crucial that we analyze the issue of immigration, in order to determine what tools can best be applied to it.
Historically, Gavison argued, immigration issues have been approached through the lens of sovereignty. States have the right to determine what goes on within their borders, and in particular they have the unlimited right to determine who can enter and how long they can stay. Indeed, we can see how thorough the right to restrict immigration was taken to be, Gavison said, by noting that the right to freedom of movement has traditionally been taken only as a right to emigrate: you have the right to leave your country, but no other country has an obligation to take you in.
Humanitarian considerations have of course always been relevant to immigration policy -- there have always been people living in extreme poverty or under oppressive political conditions elsewhere -- and this has frequently led states to make provisions to allow for the immigration of refugees. Gavison argued, however, that this doesn't go far enough for two reasons. First, the majority of immigrants are not refugees; they may merely be people looking for a better life. More importantly, humanitarian considerations historically have not been used to limit sovereignty. It has been taken to be the right of each state to determine its own policy concerning refugees; states have no duty to accept immigrants.
For these reasons, the language of humanitarianism has seemed insufficient to those concerned about (would-be) immigrants. In the 20th century, the language of human rights has grown in prominence in a number of domains. Unlike humanitarian considerations, human rights purport to impose obligations on states. A state has a duty to respect certain rights, whether or not it has endorsed those rights. This seems like a promising strategy for addressing the issue of immigration: if people have some kind of a right to immigration or if immigrants have rights to certain kinds of treatment, then that would entail that other states have a duty to accept them and to provide them with certain social services.
Despite its initial appeal, however, Gavison spent the remainder of her talk arguing that human rights discourse is not well suited to deal with the issues central to immigration. The basic idea is that rights are things appropriately dealt with by courts, judicial bodies, and the like. If you claim to have a right to something, that claim should be adjudicated by an impartial third party not subject to political pressures. To have a right is to be entitled to something, and so rights shouldn't be weighed against other factors. On the
other hand, questions of policy are best left to the judgment of legislative and executive bodies, who have different virtues and types of expertise and can take a broader view of the situation. Gavison thinks that the core questions of immigration policy can be seen to be of this latter sort, making the language of human rights at best unproductive, and at worst counterproductive.
She argued for this conclusion by citing a wide array of cases in which the inflexibility called for by a rights-based approach to immigration leads to trouble. For example, the burdens that a large influx of immigrants impose on a host country can be considerable. The government may have to see that the new residents have access to health care, education, and social security, and it may have to expand its infrastructure to achieve that, diverting resources away from the non-immigrant population. If the immigrant group is large enough, there may also be concerns that the culture and traditions of the host country will be overtaken by those of the immigrants. These, Gavison said, are real concerns. Whether or not they justify immigration restrictions, they ought at least to be weighed against the claims of the (would be) immigrants. The language of rights, however, seems to make this approach illegitimate. The claim of a right is meant to cut off conversation -- to preempt any attempt to balance the request against other concerns.
This, in turn, can result in further problems. When UNESCO conducted a study into Why so few countries had enacted the U.N.'s convention on the rights of migrant Workers -- by 2007, the convention had been signed by only 37 states, none of which were large receivers of immigrants -- it found that none of the non-signatories claimed That practical considerations of the sort just mentioned had prevented it from signing. Given the obvious political importance of these factors, this is surprising to say the least. Gavison suggested that the language of human rights, since it precludes such weighing, explains why no one was willing to put forward or discuss those considerations. In this case, therefore, human rights discourse effectively prevented people from talking about and debating the real issues involved, forcing them to instead hide behind fabricated reasons. A different kind of language, on the other hand, might have led states to express their real concerns, possibly leading to an open dialogue about the issues and (in the long run) to better conditions for migrant workers.
Human rights discourse, Gavison said, has also resulted in more restrictive border controls by many states. Historically, immigration law had recognized a clear distinction between conditions for entrance and conditions for naturalization or citizenship. States generally had quite relaxed entrance requirements, but much tougher requirements for citizenship. Given the autonomy states enjoyed, this made sense: people could be freely let into the country (for work, school, travel, etc.), since they could always be sent away later, were the state to later decide that doing so was in its interest. Now, however, the language of rights has changed things. Residents of a state, especially
those who have been there for a long time or who have family present, often claim a right to remain, and claims of this sort have been upheld by courts. As a result, it has become much harder for the host country to force them to leave, and so states have accordingly become much more careful about letting people in in the first place. This restriction of movement has all sorts of economic, social, and cultural costs, both to the host country and to would-be immigrants, which might not have been incurred had human rights discourse not been involved.
In the end, then, although human rights issues are certainly present in some cases, Gavison believes that in discussing immigration we should generally move away from human rights discourse towards a more flexible language. That doesn't mean we should be content to grant states the kind of absolute sovereignty they used to enjoy and allow them to ignore the issue. But we should recognize that the potential costs of immigration are very high. Taking into account these legitimate concerns means recognizing that immigration is a policy issue, not a judicial one. In order to have an effective, humane, and stable immigration policy, immigration needs to be discussed and openly debated, not left to the courts.
S. Andrew Schroeder, Graduate Fellow in Ethics 2007-08