Dauvergne SovereigntyMigrationRule 2004

Sovereignty, Migration and the Rule of Law in Global Times
Author(s): Catherine Dauvergne

Source: The Modern Law Review , Jul., 2004, Vol. 67, No. 4 (Jul., 2004), pp. 588-615
Published by: Wiley on behalf of the Modern Law Review
Stable URL: https://www.jstor.org/stable/3699155
REFERENCES
Linked references are available on JSTOR for this article:
https://www.jstor.org/stable/3699155?seq=1&cid=pdf-
reference#references_tab_contents
You may need to log in to JSTOR to access the linked references.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Modern Law Review and Wiley are collaborating with JSTOR to digitize, preserve and extend
access to The Modern Law Review
This content downloaded from

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
All use subject to https://about.jstor.org/terms
Sovereignty, Migration and the Rule of
Law in Global Times
Catherine Dauvergne*
This article argues that in the present era of globalisation, control over the movement of people
has become the last bastion of sovereignty. This is important both to theoretical accounts of
globalisation and to policy decisions by governments. Nation states threatened with loss of con-
trol in other realms are implementing a variety of 'crackdown' measures in questions of immigra-
tion. Issues of refugee law, illegal migration and skilled migration each challenge sovereignty in
specific ways. While international human rights standards have made few inroads in questions of
migration, recent decisions in England and Australia suggest that the rule of law may be emer-
ging as a counter to traditional executive free reign in matters of migration law.
There is an international moral panic afoot about migration. Newspapers around

the world report daily on illegal migrants arriving in boats, trucks, planes and
trains. There are calls in Britain, Australia, Canada and elsewhere to alter the
way refugees are treated, or even defined. The worldwide fear of terror has over-
lapped and intertwined with the fear of illegal migration. The prosperous West is
under siege, this popular refrain tells us; the hordes are ascending. This paper
argues that the contemporary public and political discourse about migration can
be accounted for by considering how the traditional relationship of migration law
and the nation is challenged by the advance of globalisation. For both the migra-
tion law - nation coupling and for theorisation of globalisation, sovereignty is a
core concept. As globalising forces challenge and transform sovereignty, so too is
the place of migration law in the nation altered. The response to this challenge
among prosperous and powerful nations is to imprint even more strongly than
before a sense of self - of identity and of essential 'nation-ness' - onto the text of
their migration laws. Migration law is transformed into the new last bastion of
sovereignty. This has important implications for the shape these laws take in
domestic settings, but also for how international influences on these laws will
be interpreted and absorbed. Finally, it calls to our attention the way sovereignty,
the rule of law, and nation are intertwined. Examining this matrix leads me to
conclude that the rule of law may indicate one direction forward for migration
law at this juncture, but the path it marks is fraught with theoretical and political
challenges.
My argument about the place of sovereignty in twenty-first century migration
laws has four parts. First, I outline the traditional relationship between migration
*Canada Research Chair in Migration Law, University of British Columbia, Vancouver, Canada. This
paper has benefited from research assistance by Robert Russo and Agnes Huang. In addition I am
grateful to the audience at the 13th Commonwealth Law Conference in Melbourne, April 2003 who
commented on an earlier version of parts of this paper. That partial version also became a UNHCR
working paper.
O The Modem Law Review Limited 2004 (2004) 67(4) MLR 588-615
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden,

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
law and the nation and consider how this relationship fits into narratives of glo-
balisation. I use the term migration law to refer to the domestic law or laws which
regulate the entry and stay of foreigners. In Australia, the term migration law is
commonly used; in Canada the terms immigration and refugee law are more
common; in the United Kingdom immigration and asylum law are used, and
are statutorily meshed with nationality law. In the United States and elsewhere,
somewhat differing combinations of these terms apply. I have simply chosen the
most succinct. In each case, these laws are influenced to greater or lesser extents by
relevant international law. In the second part of the article, I describe the overlap-
ping relationship between three contemporary migration law phenomena: refu-
gee flows, illegal migration and the international pursuit of the best and brightest
migrants. I focus on how each of these challenges sovereignty. I next examine
cases decided in early 2003 which depart from the established trends of judicial
decision-making in this area. Finally, I conclude by considering what turning to
the rule of law may suggest for the dilemmas of migration law, sovereignty and
nation at this point in time.
NATION, MIGRATION AND GLOBALISATION
Worldwide regulation of migration was a twentieth century invention. A

it was certainly the case that passports and border controls emerged at a
point in time,1 it was not until the beginning of the twentieth century t
world was fully and firmly divided by borders, and the requirement of p
and visas to cross them.2 What this means is that nation states and the sy
international law and sovereignty that developed along with them and h
sustain them, managed for three centuries without comprehensive migrat
ulation. This is an important corrective for assessing the present relatio
between migration laws and nation states and for identifying the conco
understanding of sovereignty it implies. Despite this recent emergence
parison with the key concepts of nation and sovereignty, contemporary m
laws are associated with the essence of the nation. This is observable in the rela-
tionship of migration law and national identity, in the place of migration laws
within liberal accounts of national community, and in the close linking between
migration law provisions and sovereign power. These three instances are of course
interwoven.
The relationship of migration law and national identity is easiest to

the New World's 'nations of immigration'. In Australia, Canada, and
States and New Zealand the mythology of the nation is bound up wit
tion. While this mythology draws strongly on the migration tradit
nineteenth and early twentieth century, national identities and valu
to be inscribed in the on-going migration programs of these nations
1 This story is well documented inJ. Torpey, The Invention of the Passport: Surveillance, Ci
the State (Cambridge: Cambridge University Press, 2000).
2 A. Dummett and A. Nicol, Subjects, Citizens, Aliens and Others: Nationality and Im
(London: Weidenfeld and Nicolson, 1990).
? The Modern Law Review Limited 2004 589

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Sovereignty in Global Times
aspects of those earlier migrations were shaped by legal frameworks,3 but the con-
temporary imprint of national self-identifications is fully inscribed in the texts
and applications of immigration law. When these nations select immigrants
because of family reunion, economic value or even humanitarian preference, they
convey the nation's values. Contemporary migration laws spell out who counts as
family and who does not, and who is considered valuable in an economic sense.
Humanitarian admissions confirm the nation itself as good and generous - part
of the immigration rule rather than an exception. The differences between
the immigration regimes of these nations of immigration and other prosperous
'Western' nations are diminishing.4 Coleman and Harding note that the tripartite
division of immigration categories pertains across the eight nations they studied.5
Israel and Germany have an additional category of admissibility; those who share
a cultural membership with the nation's majority.6 This addition fits squarely
within the national identity rubric.
The way that migration laws embed and reflect national identifications is
related to the place of these laws in liberal theorising of the national community.
I use the term 'nation' in preference to 'state' because of its emotive rather than
political and structural implications.7 In questions of migration, 'nation' is better
able to explain political outcomes than is 'state.' For example, we speak meaning-
fully of persons having a national identity, but not a state identity. Nations do, of
course, use the apparatus of state. Whether or not present governments are con-
trolled by small'1' liberals, the current sought after destination nations fit a liberal
paradigm. Migration laws are essential to the construction of such nations because
in order for the nation to exist it must have both members and boundaries.8
Migration law responds to each of these needs: it draws a clear bright line
between members and others, and it makes the border meaningful for people
3 A familiar example of early legal restrictions are the prohibitions against immigration from Asia
that were used in varying ways in Australia, Canada, the United States and New Zealand. A
comparative analysis of these provisions is presented in S. Brawley, The White Peril: Foreign Relations
and Asian Immigration to Australasia and North America, 1919-1978 (Sydney: UNSW Press, 1995).
4 Rogers Brubaker makes this point in some detail in Citizenship and Nationhood in France and
Germany (Cambridge, MA: Harvard University Press, 1992).
5 J. L. Coleman and S. K. Harding,'Citizenship, the Demands ofJustice and the Moral Relevance of
Political Borders' in W E Schwartz, Justice in Immigration (Cambridge: Cambridge University
Press, 1995).
6 Specifically, Israel's Law of Return, 5710-1950 at www.lectlaw.com/files/intl6.htm (last visited 30
March 2004), gives every Jewish person the right to automatically acquire citizenship; the
German right of entry for ethnic Germans is defined under the German Basic Law, Art 116 (23
May 1949).
7 My use of the term nation follows E. J. Hobsbawn, Nations and Nationalism since 1780: Programme,
myth, reality (Cambridge: Cambridge University Press, 2nd ed, 1992) and B. Anderson, Imagined
Communities: Reflections on the Origin and Spread ofNationalism (London and NewYork: Verso, rev ed,
1991) as well as Brubaker, above n 4, and therefore fits onto the framework of the modem state and
does not have an essential ethnic basis.
8 This theoretical proposition is given legal force in the Montevideo Convention on The Rights
and Duties of States 1933, 165 LNTS 19 which lists the four attributes of a state as a permanent
population, a defined territory, a government, and the capacity to enter into relations with other
states.
590 ? The Modem Law Review Limited 2004

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
attempting to cross it.9 For Michael Walzer, membership is the primary good
bestowed by the liberal nation; membership must be settled before questions of
justice can be addressed.10 Migration law, in tandem with citizenship law, settles
the membership question." While liberal theorists disagree over whether the bor-
der to the national community should be principally open or closed to migrants,
they do agree that there must be a border. They also agree that rules for opening
and closing the border should be tied to national self interest or self identifica-
tions.12 This function is provided by migration laws.
Migration law is also tied to the nation through its association with sovereign
national power. The linkage is not simply with the general sense of state power as
sovereign, but with sovereign as in absolute power; sovereignty in its essential
characterization. In countries that share the British legal heritage, migration con-
trols originated as an outgrowth of the royal prerogative. The law evolved from
this unfettered executive power to determine who would be admitted. Extensive
executive discretion remains an important aspect of immigration regimes, with
'exceptions' to the law playing a crucial role in the migration regimes of Canada,
Australia and the United Kingdom.13 Another dimension of strong executive
control over migration law is a marked deference of the judiciary to executive
decision-making. This pattern is not limited to regimes where the royal preroga-
tive is a factor in the immigration power. Legomsky and Aleinikoff each make
9 Other legal texts are the essence of the border when what is crossing is money, ideas, goods or
services. Saskia Sassen's observation that people providing services are not considered migrants in
the context of the North American Free Trade Agreement is a vital insight here. In this legal fic-
tion people are defined as services so that they will not be subjects of migration laws. See S. Sassen,
Losing Control? Sovereignty in an Age of Globalization (NewYork: Columbia University Press, 1996).
10 M.Walzer, Spheres ofJustice: A Defense Of Pluralism And Equality (NewYork: Basic Books, 1983) ch 2.
11 As the hurdle for naturalisation is lowered in nations around the world, migration law gains in
importance in determining membership because it determines who will be eligible to take up
citizenship. The strictures and requirements of becoming a permanent migrant are generally more
rigorous than those imposed for taking up a new citizenship once one is already a migrant. I con-
sider the citizenship law - migration law coupling in C. Dauvergne,'Citizenship, Migration Laws
and Women: Gendering Permanent Residency Statistics' (2000) 24 Melbourne University Law
Review 280. See also Brubaker's analysis of France and Germany, n 4 above.
12 Walzer, for example, generally supports a closed border but argues that some needy others be
admitted with priority for those who are most like the existing members, see n 10 above. Galloway
argues that needy outsiders be admitted when that is what is required to meet the individual moral
needs of existing members, see D. Galloway, 'Liberalism, Globalism and Immigration' (1993) 18
Queen's LawJournal 266. Carens, in contrast, argues that the exception to open borders is national
self preservation in the sense of public safety; see J. H. Carens, Aliens and Citizens: The Case for
Open Borders' (1987) 49 The Review of Politics 251.
13 In Canada, the Ministerial capacity to grant humanitarian and compassionate exemptions to any
legal requirement was a vital feature of the former Immigration Act RSC 1985, c 1-2, s 114, and
entire programs were developed under it whereby tens of thousands of individuals were admitted
each year (this discussed in S. Davis, R. Kunin and R. Trempe, NotJust Numbers: A Canadian Frame-
work for Future Immigration (Ottawa: Minister of Public Works and Government Services Canada,
1997) ch 10. In Australia, the Minister retains discretion to grant an exception to almost any deci-
sion made by bureaucrats or Tribunals and this discretion often attracts political attention. See for
example, M. Riley, 'Friends in High Places' Sydney Morning Herald 14 June 2003, 25 discussing
events known in 2003 as the'cash-for-visas'scandal. In the United Kingdom, many asylum seekers
obtain exceptional leave to remain when found not to be refugees. Statistics over recent years
demonstrate that this avenue of admission is at least as significant as refugee status, see www.ho-
meoffice.gov.uk/rds/pdfs2/hosb902.pdf (last visited 30 March 2004).
? The Modem Law Review Limited 2004 591

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
this case strongly in considering how courts have responded to immigration dis-
putes in the United States.14 The decisions of the Australian High Court over the
decade from 1992 to 2002 demonstrate this trend,15 as does the scant impact which
the Canadian Charter of Rights and Freedoms has had on immigration and refugee
law.16 Executive discretion and judicial deference combine to ensure that migra-
tion decision-making is closely associated with the exercise of sovereign power in
this essential sense: power which does not conform to judicial or legislative modes
of exercise. Migration law also engages the exposed core of state power as border
policing, detention, and deportation are also within its ambit. There is no easy
way to make those who do not want to depart actually leave; shackles and drugs
are both on the menu.17
Control over migration is associated in these ways with the essence of being a
nation, across a range of understandings of what that might be: people, borders,
mythology, and a monopoly over coercive power. Despite the nation evolving to
global dominance prior to the spread of legal regulation of migration, over the
course of the twentieth century migration and nation have become deeply inter-
twined. This points to the evolving nature of both the nation and sovereignty. The
state of that evolution in contemporary globalising times is a principal issue for
this paper.
Globalisation escapes definition. There is a broad debate among those writing
about it as to whether it even'exists' in the sense of constituting something new in
social or political ordering. What is certain, however, is that for more than a
decade now globalisation has been a part of popular, public and academic
conversation. Within the rapidly evolving theory and mythology of globalisation
both nation and migration play vital roles; nation, because a central concern of
14 S. Legomsky, Immigration and thejudiciary: Law and Politics in Britain and America (Oxford: Clarendon
Press, 1997). T. A. Aleinikoff, Semblances of Sovereignty: The Constitution, The State and American
Citizenship (Cambridge, MA and London: Harvard University Press, 2002).
15 The High Court approved mandatory detention with little opportunity for judicial review in
Chu Kheng Lim and Ors v Ministerfor Immigration Local Government and Ethnic Affairs and Anor (1992)
176 CLR 1. In Abebe v The Commonwealth; Re Ministerfor Immigration and Multicultural Affairs [1999]
HCA 14 and Ministerfor Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 the High Court
approved narrowing of judicial review rights. In Fang v Ministerfor Immigration and Ethnic Affairs
(1996) 135 ALR 583 the appellate level of the Federal Court of Australia approved the govern-
ment's requirement that a particular form be filled out to communicate a request for refugee status.
16 Since the Charter came into effect in 1982, there have only been two cases which might be consid-
ered 'victories' for immigrants or refugees. The first of these, Singh et al v Canada [1985] 1 SCR 177,
was ajudgment where 3 of the 6judges used the moribund Canadian Bill of Rights 1960, c 44 and
where the government's response (establishing a tribunal to determine in-Canada refugee claims)
has far exceeded the Court's requirements. The second, Suresh v Canada (Minister of Citizenship and
Immigration [2002] 1 SCR 3 determines that it will most often be unconstitutional to return a
person to face torture but nonetheless leaves the 'balancing' of concerns in executive hands. The
companion case of Ahani v Canada (Minister of Citizenship and Immigration), [2002] 1 SCR
72 demonstrates the potential narrow application of the Suresh principles.
17 The Australian case of Re Ministerfor Immigration and Multicultural Affairs & Anor; Ex parte SE [1998]
HCA 72 provides a compelling discussion of removals procedures. Procedures used along the US-
Mexico border are discussed in B. Moser, 'Samaritans in the Desert' The Nation (26 May 2003)
13-18. Deportation is notoriously difficult, especially for liberal democracies; see M. Gibney and
R. Hansen,'Deportation and the liberal state: the forcible return of asylum seekers and unlawful
migrants in Canada, Germany and the United Kingdom, New Issues in Refugee Research' Work-
ing Paper No 77, February 2003, United Nations High Commission for Refugees.

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
globalisation theory is the continued relevance and capacity of the nation state;
and, migration, because so much of the accompanying mythology is about an
ever quickening pace of movement of all types. Both of these ideas are important
to my argument.
Full legions of scholars have tackled the question of whether the nation state is
being, or has been, eroded by globalising forces. Some have concluded that the
nation has already been eclipsed. In Ohmae's words,'nation states have already lost
their role as meaningful units of participation in the global economy of today's
borderless world.'18 At the other end of the spectrum, Linda Weiss asserts that in
the future nation states will matter more rather than less.19 In between these two
poles, each position is occupied. Saskia Sassen, for example, asserts a'partial dena-
tionalising of national territories' along with a'partial shift' of some dimensions of
sovereignty.20 Even globalisation sceptics Hirst and Thompson who argue that
the state remains a crucial institution concede that some aspects of its governance
capacity have been weakened.21 Here, too, sovereignty refers to the power to act
without constraint and to control outcomes of that action. The globalisation
debate asks whether the nation still has the capacity to act independently or if its
actions and policy choices are determined by developments within the interna-
tional economic system. The pairing of sovereignty and nation is also at play in
this body of theory. Some theorists see a demise of sovereignty and thus of the
nation or nation state; others see a transformation of sovereignty and through this
a continued resilience of the nation; still others see a displacement of sovereignty
leaving the nation in tact. In situating migration law within accounts of globali-
sation, the shifting accounts of sovereignty are important. While the theorists are
myriad, there is a discernable trend in which people are more important to sover-
eignty than they were in the past.
This trend is important to my analysis because an enhanced role for control
over people in accounts of sovereignty contributes to an explanation of contem-
porary migration laws. A traditional account of sovereignty emphasises control
over territory22 and includes an internal dimension - capacity to govern a parti-
cular space - and an external dimension - immunity from interference by others.
For Hirst and Thompson, who are 'not merely sceptical about globalisation',23 a
18 K. Ohmae, End of the Nation State (London: Harper Collins, 1995) 11 and K. Ohmae, The Borderless
World: PowerAnd Strategy In The Interlinked Economy (NewYork: HarperBusiness, 1999). See also R.
Reich, The Work ofNations: Preparing Ourselvesfor 21" Century Capitalism (NewYork: Vintage Books,
1992).
19 L. Weiss, The Myth of the Powerless State: Governing the Economy in a Global Era (Cambridge: Polity
Press, 1998) 195.
20 S. Sassen, n 9 above, xii. See also, John Ruggie arguing that states are'anything but irrelefvant' inJ.
Ruggie,'Territoriality and Beyond: Problematizing Modernity in International Relations' (1993)
47 International Organization 139, 142. Held and McGrew assert a continuing importance for the
state but argue that current theory does not adequately express it in D. Held and A. McGrew,
'Globalization in the Liberal-Democratic State' in Y Sakamoto (ed), Global Transformation:
Challenges to the State System (Tokyo and NewYork: United Nations University Press, 1994).
21 P. Hirst and G. Thompson, Globalization in Question: International Economy and the Possibilities of
Governance (Cambridge: Polity Press, 2nd ed, 1999).
22 See Ruggie, n 20 above. I discuss this in'Illegal Migration and Sovereignty' in C. Dauvergne (ed),
Jurisprudencefor an Interconnected Globe (Aldershot: Ashgate Press, 2003) 187-211.
23 n 21 above, xiii.

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
classic view of sovereignty underpins their analysis. For them,'... "sovereignty" in

its modern form is a highly distinctive political claim - to exclusive control of a
definite territory.'24 The ensuing argument in support of the continued vitality
and capacity of the nation state is built in large part around the nation's control
over its population. People, they assert, remain 'nationalized.'25 The elements of
this nationalisation are, in lawyer's terms, found in the texts of migration laws:
passports, visas, residence and labour qualifications.26 In other words, they stake
the claim for the continued importance of the nation on the elements of migra-
tion law. Territory remains vital to sovereignty because 'populations remain terri-
torial'.27 The sovereignty which in their analysis is alienable and divisible, is so
only at the behest of nation. This role is linked to the relationship between the
nation, state, and the rule of law, which I address in the final section of this paper.
At this juncture, I underscore that even in offering an allegedly traditional account
of sovereignty, their emphasis is placed on controlling the movement of people as
the means of controlling territory.
Sassen's account of sovereignty in the contemporary era is more transformative
than Hirst and Thompson's. She argues that sovereignty remains a feature of the
international system, but is 'now located in a multiplicity of institutional arenas'28
Unlike their account, she does not assert that the nation or state is an actor in this
reallocation of sovereignty. The emerging reconfiguration of territoriality and
sovereignty is, in her view,'partial, selective, and above all strategic.'29 In her ana-
lysis, even more so than in Hirst and Thompson's, questions of immigration have
a vital place.While she asserts that international human rights now have influence
over national immigration decision-making, it remains that case that '... the state
is still considered as absolutely sovereign ...' in the domain of immigration pol-
icy.30 In other words, a pure power version of sovereignty remains. Immigration is
central to her thesis that political discourse is being renationalised at the same time
that economic space is denationalised. The sovereignty that is asserted over ques-
tions of immigration is not the new or transformed version that often appears in
accounts of the global. It is the standard version in'all its old splendor.'31 The ques-
tion that this introduces into the analysis is whether sovereignty in the migration
realm could ever be transformed in this way. The consideration of the rule of law
which concludes this paper suggests that this may not be possible, and in the pro-
cess challenges Sassen's assertion that human rights norms are making significant
inroads in the immigration realm. In the meantime, Sassen illustrates again that
when thoughtful analysts of sovereignty and nation add immigration matters to
their focus, the resilience of sovereignty rather than its transformation are stressed.
24 ibid 256.
25 ibid 257.
26 ibid.
27 ibid 275.
28 n 9 above, 29.
29 ibid 30.
30 ibid. Later she states,'... when it comes to immigrants and refugees, whether in North America,
Western Europe, or Japan, the national state claims all its old splendor in asserting its sovereign
right to control its borders. On this matter there is also a consensus in the community of states'
ibid 59.
31 n 9 above, 59.

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
For some analysts of immigration, the shift from associating sovereignty with
territory to associating it with population is already completed. Thus for David
Jacobson, the'failure to appreciate fully the "peopleness" of the nation-state handi-
caps analysis of contemporary trends.'32 In his view the importance of territory to
sovereignty derives from its role in determining the membership of the nation.
Sovereignty is in the people rather than the place. Similarly, for ChristianJoppke,
a core prerogative of the state is sovereignty over the admission and expulsion of
aliens.'33Kim Rubenstein similarly situates control over citizenship as the essence
of sovereignty.34
An absolute power over territory and people are both aspects of sovereignty
and are necessarily intertwined. Emphasis has altered between the two over
time.35 The observable shift at present is important to explaining the shape of
contemporary migration laws and to considering how these laws can or should
be adapted to these globalising times. As nations have seen their powers to control
the flows of money or ideas and to set economic or cultural policies slip away, they
seek to assert themselves as nations through migration laws and policies which
assert their 'nation-ness' and exemplify their sovereign control and capacity. The
sovereignty asserted in this realm is the traditional variety, not divided, shared,
alienable or modified. While MacCormick asserts that sovereignty may be lost
to mutual benefit, the immigration laws and policies of the world's most powerful
nations suggest that they do not share his view.36 In the next section I consider
trends in globally converging migration laws and describe how each of these can
be understood as a response to challenged sovereignty.
CONTEMPORARY OVERLAPPING MIGRATION PHENOMENA
The stock story of globalisation is one of fluidity. More and more

ing at faster and faster rates. The question of migration fits somew
into this mythology. While it is clear many people are on the mov
ble to simply conclude that there is more migration than in prev
considers the vastly increased world population and the place of
comparatively rich. The most comprehensive study to date docu
nomena associated with globalisation concluded that present migr
32 D. Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship (Balti
kins University Press, 1996) 5.
33 C. Joppke,'Why Liberal States Accept Unwanted Immigration' (1998) 50 World
He cites Hannah Arendt's The Origins ofTotalitarianism on this point: 'Sovereignty
absolute than in matters of emigration, naturalization, nationality and expulsion'
34 K. Rubenstein,'Citizenship in a Borderless World' in A. Anghie and G. Sturgess
of the 21's Century: Essays in Honour ofJudge Christopher Weeramantr, (The Hague:
national Publishers, 1998).
35 A detailed discussion is presented inJ.S. Barkin and B. Cronin'The State and
ging Norms and the Rules of Sovereignty in International Relations' (1994
Organization 1.
36 N. MacCormick,'Beyond the Sovereign State' (1993) 56 MLR 1. See also N. M
tioning Sovereignty: Law State and Nation in the European Commonwealth (Oxford: O
Press, 1999) 126. Here MacCormick acknowledges politicians still appeal to a'stri
version of sovereignty (at 133).

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
they continue, may surpass previous level of migrations in both 'intensity' and
'extensity'.37 While this conclusion was drawn four years ago, it is probably still
too soon to draw a clear picture of the place of migration in globalisation's
pastiche. There is abundant evidence, however, of how nation states are adapt-
ing their legal approaches to migrants. Three overlapping instances illustrate
how this law is being used to address perceived threats to sovereignty: refugee
law, sanctions against extra-legal migration, and recruitment of the best and
the brightest.
Refugees and refugee law
The extent to which refugee law can be understood as a constraint on national

sovereignty is exaggerated by the fact that there are no other international legal
constraints in the migration law realm. Nations are free to open or close their
borders as they choose, save to their own nationals, and they have concomitant
independent control over who those nationals will be. Calls to reframe the Refu-
gee Convention or announcements of upcoming derogations reflect the impor-
tance of migration control to perceptions of national sovereignty. On
consideration, it is apparent that the Refugee Convention is a minimal constraint
which has taken on mythic proportions at time when control over population
movements is shifting to the core of what it means for a nation to be sovereign.
The Refugee Convention was drafted in the aftermath of World War II and
came into effect in 1954.38 It was modified in 1967 to remove its explicit focus on
the events of the war in Europe.39 For the most part, the Convention reads like a
human rights document, setting out standards of treatment for refugees by the
states that host them. These aspects of the Convention receive scant attention,
and the Refugee Convention is not even listed by the UN in its compilation of
major human rights documents.40 The aspects which do get attention are the refu-
gee definition and the article protecting refugees from refoulement. Refugees are
people fleeing persecution on the basis of one of five grounds (race, religion,
nationality, particular social group or political opinion).41 The non-refoulement
provision translates into an effective right to remain in a host state because
37 D. Held, A. McGrew, D. Goldblatt and J. Perraton, Global Transformations: Politics, Economics

and Culture, (Cambridge: Polity Press, 1999). This analysis is set out in Chapter Six. They also
considered 'velocity' and 'impact on host and home societies'.
38 Convention relating to the Status of Refugees 1951, 189 UNTS 150.
39 Protocol relating to the Status of Refugees 1967, 606 UNTS 267, entered into force 4 October 1967.
40 Office of the United Nations High Commissioner for Human Rights, 'International Human
Rights Instruments' at http://www.unhchr.ch/html/intlinst.htm (last visited 7 August 2003).
41 The complete definition in Article 1A defines a refugee as any person who:
... owing to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection
of that country; or who, not having a nationality and being outside the country of his former
habitual residence, is unable or, owing to such fear, is unwilling to return to it.
This definition is widely regarded as compromise ensuring relatively narrow eligibility for refu-
gee status.
596 C The Modem Law Review Limited 2004

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
signatory nations undertake not to return refugees to those places where they face,
in the pithy formula of the Australian High Court, a'real chance' of persecution.42
Because the twinning of sovereignty and migration control means that nations
are not obligated to admit those who are not their nationals, there is usually
nowhere a refugee can go, and thus protection from refoulement translates into
permission to remain.
The relationship of the Refugee Convention and national sovereignty has sev-
eral twists. First, when a nation commits itself to the Convention, it does so as a
sovereign act. It chooses, voluntarily, to respect its provisions, including the impli-
cation that some refugees will have permission to remain. This commitment does
not redefine or challenge sovereignty as traditionally understood and is a com-
monplace of international law.43 A second reason why refugee law does not pre-
sent a significant challenge to sovereignty is that nations make efforts, legally and
publicly and politically, to limit the number of refugees who will be protected by
this Convention. These efforts are evinced in the widespread use of target or quota
numbers for domestic refugee determinations, in safe third country policies, and
in a variety of efforts to prevent and deter refugees from entering in the first place.
A third reason why the Refugee Convention is not a major challenge to sover-
eignty is that the non-refoulement provision - the only one which affects the
nation's sovereign capacity to admit or expel anyone save nationals - constrains
the nations with the most sovereignty the least. That is, of the approximately 20
million potential candidates for refugee status currently in the world, a compara-
tively small number are in prosperous Western nations.44 It is primarily in relation
to these nations that refugee status is regarded as a somehow unfair advantage,
akin to immigration status. It is for these nations that the formally equal notion
of national sovereignty is most powerfully deployed in a globalised world.45 For
poor nations situated in places where refugees flow over their borders, the notion
of absolute and independent power is so severely constrained by the North's bank-
ers and arrangers that the additional constraint the Convention might represent is
a trifle.46
Finally, the Refugee Convention is a scant constraint on sovereignty because

prosperous nations like Australia and Canada which have been strongly associated
internationally with the Refugee Convention, have begun backing away from
some of its provisions without consequence. Examples of this include Australia's
42 Protection against refoulement is set out in Article 33. The real chance test was stated in Chan v
Ministerfor Immigration and Ethnic Affairs (1989) 169 CLR 379. Interpretation of this provision is not
formally internationally standardised, but similarly situated courts are attentive to what others are
deciding in the area.
43 There is some argument now that some aspects of refugee protection may be acquiring the status
of customary international law or even jus cogens, which would alter this principle, but it is my
view that many nations will resist this argument and thus defeat these assertions.
44 Of the nearly 20 million people of concern to the UNHCR in 2002, approximately 15 million are
in Asia, Africa, Latin America and the Caribbean at http://www.unhcr.ch/cgi-bin/texis/vtx/basics
(last visited 7 August 2003).
45 Peter Fitzpatrick discusses this hierarchy in P. Fitzpatrick, Modernism and the Grounds ofLaw (Cam-
bridge: Cambridge University Press, 2001).
46 It is also significant the both South American states and African states have committed themselves
to more expansive refugee protection than that agreed to by the prosperous nations.
O The Modem Law Review Limited 2004 597

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
so called'pacific' solution under which people seeking to make claims were deliv-
ered by the state to non-signatory nations; and Canada's Immigration and Refu-
gee Protection Act which includes more stringent exclusions on the basis of
criminality47 than the exclusions or reasons for expulsion in the Refugee Con-
vention.48 The United Kingdom is currently proposing to implement 'transit
processing centres' in poorer states, a move which mirrors the Australian but
which will have a much greater scale and will also have the potential for further
reaching international influence because of the on-going work at harmonising
European asylum policies. Each chips away at the scope of what will be consid-
ered state practice for signatory nations, and there is presently no forum for legal,
as opposed to political, opposition to this to be heard.49
The Refugee Convention also lacks the power to upset the migration law -
sovereignty pairing because it is fundamentally not about immigration. The per-
nicious blurring of the line between immigration control and refugee protection
impedes humanitarian refugee objectives. I will return to this when considering
illegal migration.
All these factors add up to a strong case that the Refugee Convention impinges
very little on essential sovereignty. What accounts therefore for the role that refu-
gee matters play in the growing moral panic about migration? The answer has
two parts. One, is that in the absence of any other constraints in the migration
realm, potential protection against refoulement stands as a beacon to any destitute
or desperate individuals around the world who might seek to better their life
chances. In an era where global inequities are increasingly stark, desperation is
on the increase. The second is that precisely because sovereignty is increasingly
focused on control over population movements, the movement of refugees is
much closer to the core of nations' understandings of their own essence and power
than ever before. With the vast body of human rights norms now articulated and
accepted internationally and arguably shaping and constraining the actions that
nations may take, the requirement not to refoule refugees still triggers a'red-flag-
to-a-bull' type response: it strikes at the core.so
Illegal migration and globalised fear
Globalisation fuels illegal migration in several ways and the present response is a
worldwide 'crack down' on illegal migration. Illegal migration is an affront to
sovereignty because it is evidence that a nation is not in control of its borders.
Contempt for illegal migration also affects refugee law, as well as public and poli-
tical discussions of refugees. This threat to sovereignty and the influence on refu-
gee discourses both engage the migration law - sovereignty intertwining.
47 Immigration and Refugee Protection Act SC 2001, c 27, ss 101 (1)(f), 101 (2).
48 As set out in Article 1F and in Article 33(2).
49 There is no international mechanism specifically for oversight of the Refugee Convention at this
time. Some impetus is growing behind proposals to implement one. See J. C. Hathaway, 'Who
Should Watch Over Refugee Law?' (2002) FMR 23.
50 A good example of this is that the nation's capacity to assert immigration controls is explicitly
protected in the European Human Rights Convention.

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
An important threshold issue for talking about illegal migration is attempting

to define it.51 Technically, anyone who is present in a nation state without either
nationality or authorisation under law is an illegal migrant. Many people around
the world who have no legal migration status have overstayed tourist, student or
work visas. Still, the image conjured by the term'illegals' is of people suffocating
in the backs of lorries, of unseaworthy vessels in the Adriatic, Mediterranean or
Timor seas, of those from the South attempting to evade capture along the US-
Mexico border. The term 'illegal' has escaped its legal, and even grammatical,
moorings and now stands alone as a noun. It does not conjure British backpackers
overstaying on Australia's Gold Coast, or Kiwi's working in London's pubs. It con-
jures sweatshops and sex shops, poverty and race. The face of the imaginary illegal
is poor and brown and destitute. This imagery works against careful attempts to
define illegal migrants as those who transgress migration laws, it complicates
attempts to respond appropriately to the phenomenon and to understand how
and why it challenges sovereignty.
It is difficult to be certain, of course, that illegal migration is on the increase.
Worldwide, the number of 'illegals' of any sort might plausibly be estimated as
at least 20 million. In the United States, estimates of the size of the illegal popula-
tion range from 5 million to 15 million.52 The International Organization for
Migration estimated the number of unauthorised migrants in Europe at 3 million
in 1998.53 Pravda reported the number of illegal migrants in Russia as 'about 10
million' in 2001.54 In the 1994 one estimate suggested there were 500,000 illegal
migrants in the Philippines.55ss Reports of the size of the illegal population of
Nigeria have ranged from 300,000 to 2.5 million over the past two decades.56
Amnesty International reports that 'tens of thousands' of North Koreans are illeg-
ally in China.57 The best available information suggests that these numbers are on
the increase, although not each year in each region.
What is certain, is that concern about illegal migration is increasing even more
rapidly than the phenomenon itself. Illegal migration feeds on the communica-
tion and transportation technologies of globalisation. People smuggling and
human trafficking operations which are part of illegal migration use these tech-
nologies to, for example, present people in China's Fujian province or in a Pakis-
tani refugee camp, with destination options. 'Delivering' them to the borders of
the United States, Australia or Fortress Europe.With each extension of legal sanc-
tion illegal migration is, of course, increased for there can be no 'illegal' migration
51 A thorough discussion of the dilemmas this presents is given in B. Ghosh, Huddled Masses and
Uncertain Shores: Insights Into Irregular Migration (The Hague: Martinus Nijhoff Publishers, 1998)
ch 1.
52 The Immigration and Naturalization Service provides one well regarded set of statistics. The
overall range is discussed by Ghosh, n 51 above, 10.
53 International Organization for Migration, World Migration Report 2000 (Geneva: IOM, 2000). This
report will soon be reissued as World Migration Report 2002.
54 About 10 Million Illegal Immigrants Live in Russia' Pravda 2001.10.24 at http://english.pravda.ru/
society/2001/10/24/18970.html (last visited 30 March 2004).
55 As reported by the Manila Chronicle and discussed in Ghosh, n 49 above, 16.
56 Ghosh, n 51 above, 17.
57 'China: Crackdown on"illegal immigrants" likely to target North Korean refugees'AI Index ASA
17/013/2002 News Service Nr 56.
o The Modem Law Review Limited 2004 599

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
without law. Similarly, efforts to increase enforcement of such provisions inevita-

bly concomitantly increase perception of the phenomenon.58
In response to the perceived or real growth of illegal migration, and to the evi-
dent increase in smuggling and trafficking that is intertwined with it, the nations
of the prosperous world are cracking down. In 1996 the United States introduced
its Illegal Immigration Reform and Immigrant Responsibility Act focusing on
measures such as entry and exit controls, document fraud, people smuggling,
and a ratcheting up of employer sanctions for those who employ extra legal work-
ers.59 The United States has also poured millions of dollars into'Operation Gate-
keeper' to bolster security along its border with Mexico. The 1999 British
Immigration and Asylum Act targeted unfounded asylum applications, fast track-
ing 'out' of the asylum system but not into it, reducing rights for asylum seekers
and new identity controls. More recently, it has stringently curtailed the provision
of welfare state benefits for asylum seekers.60 Germany changed the form of its
constitutional right to seek asylum in 1993 and in 1998 it introduced new laws
reducing benefits for asylum seekers. France has reduced asylum seeker benefits
within the past decade. Since 1999 Australia has removed the possibility of perma-
nent status from some refugees, has declared some of its own territory to be
'beyond its borders' for the purpose of asylum claims, and has introduced a
comprehensive privative clause into its legislation.61 Canada has introduced a
mandatory requirement that its refugee decision-makers take into account
whether a claimant has adequate documentation.62 The EU is currently working
on developing a common policy on illegal immigration to give effect to the
Treaty of Amsterdam commitments in this direction.63 Illegal migration - almost
impossible by definition at the outset of the twentieth century - is at the top of the
legal agenda for the twenty-first.
Two things about this phenomenon are essential to the story of national sover-
eignty and migration law. The first is that the legal crackdown needs to be under-
stood in the context of the threats globalisation presents to nation states. In the
face of diminished capacity in economic policy and trade realms, in military
matters and corporate management, cracking down on illegal migration repre-
sents a strong assertion of sovereign control. This may be one reason why EU
cooperation has been slow to develop in this area, because the capacity to crack
down is related to the new last bastion of sovereignty, and is therefore the hardest
58 It is less certain that stepped up enforcement efforts curtail the actual movement of people. Mon-
itoring of the United States' extensive efforts towards enforcement of the border with Mexico
since the mid 1990s suggested that while border crossing locations have been shifted, numbers
have not dropped. See B. Moser, n 17 above.
59 Illegal Immigration Reform and Immigrant Responsibility Act 1996 Pub L 104-208, enacted on
30 September 1996.
60 Under Section 55 of the Nationality, Immigration and Asylum Act 2002, which came into effect
on 8 January 2003.
61 New visa subclass 785; Migration Legislation Amendment Act (Judicial Review) 2001; the Migra-
tion Amendment Act (Excision from Migration Zone) Act 2001.
62 Immigration and Refugee Protection Act SC 2001, c 27, s 106.
63 See'Communication from the Commission to the Council and the European Parliament: Biann-
ual Update of the Scoreboard To Review Progress on the Creation of an Area of "Freedom,
Security and Justice" in the European Union' Brussels 22.5.2003, COM (2003) 291 Final. New
measures were put in place in time for 1 May 2004.

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
to surrender. Nations assert their 'nationness' by cracking down on illegal migra-

tion. It is also for this reason that the term nation brings more to this story than
'state', because this 'nationness' attunes to both power and identity.
In addition, a rhetorical focus on 'illegals' shifts the boundaries of exclusion.
When a part of the population is acknowledged to be 'illegal', it is excluded
and erased from within. Even when sovereignty at the border is breached,
labelling people within one's territory 'illegal' imprints sovereignty. It effectively
shifts argument about membership and entitlement. When people are identified
as 'illegal' it is hard to argue their membership claim on the basis of their
contribution to the economy or their long term residence. These contributions
are instead counted as evidence of their transgression. Sovereignty in this
picture is again seen to be about people rather than territory, as the label 'illegal'
allows us to shift the US-THEM line from the border of the nation to within
the nation, wherever it is required. In this way, cracking down on illegal migra-
tion functions as an assertion of both the internal and the external dimensions
of sovereignty.
The second aspect of the crackdown on illegal migration to consider is its rela-
tionship with refugee law and refugees. The Refugee Convention provides no
right to enter for those who seek to claim refugee status. This means that some
people seeking refugee status enter illegally.64 The Convention does require that
refugees not be penalised for illegal entry,65 but this provision cannot protect
refugees from the effects of a moral panic about illegal migration. It cannot pro-
tect them from public and political disapproval, nor from detention until their
status is determined. It cannot protect them from the erroneous notion that there
is a 'queue' to be joined to enter prosperous nations and the accompanying fic-
tion that 'waiting it out' in a refugee camp, or worse, would eventually achieve
a similar outcome while ensuring moral superiority. This failure to protect
arises because public and political discourses are inattentive to the intricacies of
the law. Also, refugees and illegal migrants occupy much of the same space in
our collective imagination. They are envisioned as have nots, hoping to gain
from our beneficence. They are foreign, other, desperate, brown-skinned. They
are not us. Thus the current crack down on illegal migration cracks down on
refugees as well.
The problem for refugees is also heightened by the fact that cracking down on
illegal migration increases the incentive for those who are not refugees to attempt
to attain this status. That is, there is an incentive to lie. The incentive can be a
sophisticated one, organised with the support of smugglers or agents. It can also
be an unsophisticated one, encouraged by the knowledge that such status is avail-
able for some who are vulnerable and desperate, and the certainty that one fits into
those categories. The picture is further complicated by the fact that we know that
refugees tell lies - some because of their illegal entry, some because of their
experiences with governmental authorities, some because of the increasingly
64 This is not true of all refugee claimants because they can also enter on visa and then seek refugee
status, or in some countries can enter without a visa.
65 Article 31(1).
? The Modern Law Review Limited 2004 601

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
stringent requirements, for example in regard to identity, which are brought in by

crackdown measures. Telling a lie does not mean one is not a refugee, but it is
troubling and confusing to refugee decision-makers. In an atmosphere where
the incentives to lie are being increased for non-refugees, credibility is ever harder
to establish and suspicion abounds.
Increased international concern about illegal migration brings increased pro-
blems for refugees. These in turn contribute to the blurring of immigration and
refugee concerns which are themselves at the root of much of the present hostility
towards refugees. The crack down measures also make refugee travel harder,
which leads to increased profitability in the illegal markets of trafficking and
smuggling.66 This is perhaps the most nefarious way that a crack down increases
the illegality of migration. The stock story of illegal migration is that people mov-
ing outside the law are not refugees because they are seeking to better their eco-
nomic circumstances. This is the ironic flipside of the final contemporary
immigration phenomenon - the term 'economic migrant' is sometimes equated
with the 'bogus refugee' but other times with the highly sought after migrants
of the new global economy.
The best and the brightest
The worldwide stakes to recruit the most highly qualified migrants are heating
up. The competition for the world's best and brightest also contain lessons about
current challenges to sovereignty. This area of migration regulation is also set to
shift even more at the outset of the twenty-first century.
Canada and Australia have been, with their points systems67 for identifying
and categorising economic 'skilled' migrants, at the forefront of attempting to
recruit migrants to fuel the national economies. Both countries have, in the past
decade, made economic category migrants the largest category of annual intake,
moving family reunion migration to second place. This trend is reflected, though
not yet so dramatically, in other popular destination nations. Even the United
States, where annual migration intake is presently overwhelmingly weighted in
favour of family reunification migration,68 is considering moves in this direc-
tion.69 This in spite of the fact that the size of the United States economy is such
66 Evidence is also now available that suggests that the current crack down on illegal migration is
increasing the profitability and therefore prevalence of people smuggling, see Moser n 17 above,
15. See also E. Newman (ed), Refugees and Forced Displacement (Geneva: United Nations Publica-
tions, 2003).
67 Both nations evaluate prospective migrants and assign points in a series of categories such as lan-
guage skills, education, work experience, existing connections to the host state etc. These provi-
sions are set out in Canada's Immigration and Refugee Protection Regulations (14 June 2002)
136:9 Canada Gazette Pt II at Regs 73-109; and provided for in Australia's Migration Act 1958
(Cth), Division 3, Subdivision B.
68 In 2001 the United States admitted approximately 675,000 family reunification migrants and
280,000 migrants whose admission was based either on economic skills or the green card lottery.
69 Remarks by Demetrious Papademetriou, Co-Director, Migration Policy Institute, Washington
DC, Vancouver-Ottawa-Washington video-conference, 29 September, 2002.
602 3 The Modem Law Review Limited 2004

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
a significant draw that such measures are arguably unnecessary. Nations are
increasingly casting themselves as being in a competition for the world's most
desirable migrants.70 This trend means that migration laws at this point in time
reflect one of the paradoxes at the centre of globalisation: for those with more,
globalisation makes more available, for those with less, there is less. Inequalities
are increased, exclusions are underscored.
The recruitment of economic migrants is premised on a nationalised view of
economies and a dated understanding of migration categories. Even those most
sceptical about the effects of globalisation consider that economic priorities are
increasingly influenced on a global level. When the nation sets out to bolster its
economy by shifting the location of particular workers and entrepreneurs, it is
attempting to counter this trend. When a nation awards membership on the basis
of investment, it is seeking to influence what would otherwise be the global dis-
tribution of capital." Furthermore, competitive recruitment for economic
migrants points up the fact that the current categories of migration are no longer
appropriate. Many 'permanent' migrants stay for several years and then move on.
If they were recruited by one prosperous nation on the basis of their economic
value, they are likely to find themselves admissible to others as well. Indeed, they
may well return 'home' permanently or temporarily. While it is true that nations
such as Canada and Australia also attempt to meet economic needs by recruiting
temporary workers, it remains the case that very little effort is made to analyse
whether categories of permanent and temporary migration are meaningful.
Rules in this category, therefore, reflect a backward looking view of both econo-
mies and migration trends.
Best and brightest migration, which makes for good politics in receiving states,
is a direct cause of brain drain in less prosperous nations. When the competition
for skilled and wealthy migrants increases, so does the drain away from sending
states. One important example of this is the parallel policy shift in Australia and
Canada which makes it easier for those who have entered as tertiary students to
remain as workers. This represents superior economic rationalisation for the host
state - the possibility of capturing the elevated foreign student tuition without the
downside of losing someone whose education the state has subsidised. In addi-
tion, those who have lived in the country as students will encounter fewer transi-
tion issues than migrants arriving for the first time. For the receiving state, this
makes good sense and is an easy sell. It ignores the global implications of migra-
tion, and thus, again, merges migration and sovereignty. There is no forum for
70 As one example, Australia's Minister of Immigration stated in March 2003:

We are building very much on the established program which has enabled us to get a very, very
marked shift to skilled migration in the context of increased world competition for what is in
fact a scarce resource we are increasingly faced with competition and one of the ways in which
we have been able to leverage Australia as a destination for permanent migration for people
with skills has been the growth in the overseas student market in Australia.
Transcript, Press Conference - Migration Program 03-04, Canberra, 31 March 2003.
71 This is an additional technique used in both Canada and Australia. In Canada investors and entre-
preneurs face lower 'other criteria' than the general class of economically skilled migrants, pro-
vided they have a net worth of $800,000 CAD or $300,000 respectively. Immigration and
Refugee Protection Regulations n 67 above, Regs 88-99.
C The Modem Law Review Limited 2004 603

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
considering issues of global equity in migration policy because sovereign control

over the question is settled. The challenge that the recruitment of skilled migrants
poses to sovereignty is the structure of the internationalised economy to which
they are recruited and the impermanence with which they remain.
This recruitment of economic migrants also signals a shift in the meaning of
migration for nations. Prior to the advent of migration laws, and through much
of the twentieth century, migration mirrored economic goals. Hardworking peo-
ple in search of a better life travelled to the ends of the earth and made those places
their homes. They came with little or nothing and they made new lives for them-
selves. This is no longer possible. People with little or nothing, who want a better
life for themselves and who are prepared to risk all and work hard to get it are
now 'mere economic migrants' and 'bogus refugees'. The very qualities which
make up the mythology of 'immigrant nations' are now migration disqualifiers.
In this way, the logic of immigration and refugee laws are overlapping. Those who
are now known for arriving in prosperous nations and turning their family's for-
tunes around within a generation arrived as refugees. The Indochinese refugee
crisis of the late 1970s and early 1980s sent individuals around the world who
now, a generation later, are being heralded for their adaptation and achievements,
just as earlier migrants have been. This makes it even harder to keep refugee efforts
separate from immigration issues in political and public minds.
Acceptable economic migration relies on bettering the economy from a
national point of view, not improving the economic circumstances of individuals
- though this may be a salubrious side-effect. By operating in these terms nations
embrace, here again, a traditional view of sovereignty. These recruitment policies
assert that there is a national economy, that it has very clear boundaries, and that it
can be directly affected by shifts in policy. Criticisms of these programs suggest
that this may not be the case.72 Globalising times introduce enormous stress to
policy attempts to manage national economies in this way. If nations formerly
had an ability to 'target' migration to this end, the conditions of the global econ-
omy have severely undermined it, as has the capacity of highly skilled individuals
to choose destination options. In the case of economic migration, as in the case of
refugees and illegal migrants, the story is one of the nation asserting sovereignty
and migration flowing around that assertion. In this case, the erosion evidenced
by this flow is more advanced.
Refugees, illegal migrants, and highly privileged migrants all make up part of
the story of migration in the early twenty-first century. These are the front page
stories. The law is woven into the story of each scenario in a particular way as
nations seek to adapt international law, ratchet up legal provisions to seal borders,
and provide legal frameworks for facilitating admission. In these and other areas
72 A group of 2002 analyses in Canada criticised the government for not recruiting immigrants in
the best way from an economic point of view: M. Collacott,'Canada's Immigration Policy: The
Need for Major Reform' (2002) 64 Public Policy Sources- A Fraser Institute Occasional Paper, D. Stoff-
man, Who Gets In: What's Wrong With Canada's Immigration Program and How to Fix It (Toronto: Mac-
farlane, Walter & Ross, 2002); D. Francis, Immigration: The Economic Case (Toronto: Key Porter
Books, 2002). Some of the policies called for are, in fact, already in place. A more accurate analysis
is probably that national economic goals can no longer be easily manipulated in this way, if ever
they could.
604 ? The Modern Law Review Limited 2004

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
of migration regulation, executives have traditionally found themselves accorded

a high degree of judicial deference. In the next section of the paper, I consider
recent cases in Australia and the United Kingdom which may be harbingers of a
shift. I then consider whether such a potential shift is linked to a reading of the
rule of law in times of shifting sovereignty.
SAYING NO TO GOVERNMENTS: EXCEPTIONS OR

NASCENT RULES?
In 2003, the Australian High Court, and both the Court of Appe
Court for England and Wales required the executive to meet higher s
procedural fairness in issues concerning refugee claimants. In each case, th
tive Court set a standard which left the government with ways of pu
objectives in accordance with the ruling, and thus the victories are n
However, the decisions focus on the fundamental procedural rights
with the rule of law and present a counter to the general trend of
executive a wide discretion in migration matters. Each decision addre
stances situated at the confluence of refugee law and illegal migration
In Plaintiff S157/2002 v Commonwealth of Australia73 the Australian H
read down the comprehensive privative clause which the govern
inserted into the Migration Act in 2001.74 The history of the provisi
to understanding the importance of the case. The government had s
introduce a privative clause as early as 1997 with the objective of re
number of judicial review applications from Refugee Review Tribun
to the Federal Court75 but had been unsuccessful because of opposit
upper house of the national parliament. Following the 2001 Tampa aff
ever, the main opposition party decided that as a matter of election
would support the government's migration law agenda, apparently b
strong public support for the government's handling of those even
73 PlaintiffS157/2002 v Commonwealth ofAustralia [2003] HCA 2 (4 February 2003).

74 The clause reads:
A privative clause decision: (a) is final and conclusive; (b) must not be challenged, appealed
against, reviewed, quashed, or called in question in any court; and (c) is not subject to prohibi-
tion, mandamus, injunction, declaration or certiorari in any court or on any account. Migration
Legislation Amendment (Judicial Review) Act 2001 (Cth), altering s 474 of the Migration Act.
75 P. Ruddock,'Narrowing ofJudicial Review in the Migration Context' (1997) 15 Australian Institute
of Administrative Law Forum 13.
76 In August 2001 the Norwegian container ship MV Tampa rescued 438 asylum seekers from an
unseaworthy boat attempting to cross from Indonesia to the Australian territory of Christmas
Island. The Australian government closed the territorial sea to the Tampa when it attempted to
unload its human cargo. In the ensuing few weeks the ship was boarded by crack SAS troops,
the government faced a habeas corpus challenge in federal court, Australia faced international
criticism, and the asylum seekers were eventually transported by Australian military ship to
Nauru, Manus Island in Papua New Guinea and New Zealand to make asylum claims there. Mid-
way through this localised drama, the September 11 terrorist attacks occurred in the United States.

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
order, a series of amending Acts were tabled, including the one establishing the
privative clause.77
Despite its inability to secure passage for a privative clause prior to 2001, the
Australian government had introduced a series of other measures to reduce the
flow of refugee cases to the courts. Most notably, in the late 1980s detention
reviews were curtailed,78 and in 1997 'breaches of natural justice' and 'unreason-
ableness' were eliminated as acceptable grounds of judicial review in the Federal
Court. In each case, challenges to the government's legislation had been rejected
by the High Court.79 Each bit of clever lawyering which widened options for
asylum seekers was met by new legislation and its subsequent judicial approval.
In short, while refugee litigation has had a high profile in Australia over the past
decade, until February 2003 the story that executives receive a high degree of
judicial deference in the migration law realm has been unchallenged.
The ruling in S157 turns on, in the words of Chief Justice Gleeson,'a basic ele-
ment of the rule of law.'80 The dispute over the interpretation of the privative
clause arises against the backdrop of the guarantees provided by section 75(v) of
the Constitution of the Commonwealth of Australia that the High Court has an
original jurisdiction to issue writs of mandamus or prohibition, or an injunction,
against officers of the Commonwealth. This provision is part of Chapter III of the
Constitution which describes the parameters of judicial power and ensures the
separation of judicial power from executive and legislative powers. While the
decision is unanimous, the joint judgment emphasises the importance of the text
of the constitution, and refers to section 75(v) as a 'textual reinforcement' of the
rule of law,8 whereas the Chief Justice gives more direct emphasis to the rule of
law. The rule of law, its nature and its particular location within a 'federal com-
pact'82 are at the core of the decision. The result is a ruling which reinvigorates
the difficult jurisprudence of jurisdictional error as central to Australian law,s3
and which therefore allowed both sides to claim victory.
What is interesting from the point of view of my argument here, is the asser-
tion of the rule of law as an inviolable principle into the contestation between the
Australian government and the High Court over refugee matters. The decision
could have been made without reference to the rule of law, on strictly written
constitutional grounds. Reference to the rule of law evokes something larger,
grander, outside the constitution. Or alternatively, it revives the notion that Aus-
tralian constitutionalism has important non-written aspects, an idea which has
77 Other amendments included reigning in judicial interpretations of the Refugee Convention by

prescribing limits to the scope of 'persecution' and 'particular social group' and 'serious crime' see
Migration Act 1958 ss 91S, 91T, 91U.
78 Now in Migration Act 1958, s 183.
79 In the cases of Lim, Abebe, and Eshetu above n 15.
80 n 73 above, paragraph 5.
81 ibid at para. 103. The joint judgment is authored by Gaudron, McHugh, Gummow, Kirby and
HayneJJ.
82 ibid.
83 The court upholds what Australian public lawyers know as the Hickman principle that limits the
power of Parliament to oust judicial scrutiny to decisions which are within jurisdiction. The
jurisdictional error distinction was abandoned in English courts in Anisminic Ltd v Foreign
Compensation Commission [1969] 2 AC 147 (HL).
606 0 The Modem Law Review Limited 2004

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
been absent from recent High Court decisions. In either case, it brings the rule of
law into the debate and, in contrast to the decisions of the preceding decade it says
no, at least partially, to the government.84 This is important for two reasons. First,
because in saying 'no' we may yet find a mark of the turning tide. Second, as I will
consider further below, the rule of law is not a passive standard but a shape-shifter
of long pedigree. Indeed, already in Justice Callinan's judgment, a discourse of
human rights is introduced. And he specifically distinguishes 'uncontestable
human rights'"8 from the concerns wrapped up in rule of law debates at the time
of Australian federation, thereby reaching beyond traditional constitutional inter-
pretation.86 He is the only judge to write in these terms, but in doing so he names
some of the public tension that swirls around the decision: what rights can refu-
gees actually claim these days, how do they claim them and in whose courts. Cal-
linan asserts that access to the courts is a right of 'citizens' and emphasizes that,'...
every nation insists upon the right to determine who may enter the country, who
may remain in it, who may become one of its citizens, and who may be liable to
deportation.'"87 Nonetheless, the context of this decision suggests that such insis-
tence is contested.
The relationship between the rule of law and fundamental human rights,
which S157 introduces but tries hard not to address, is vital to the dilemmas of
migration law, and especially refugee law, under the pressures of globalisation.
The recent English decisions provide a different perspective on how these two
elements are related. The Court of Appeal in the case of Q and Others"8 upheld
the decision of Justice Collins in the High Court89 that the procedures in place
to deny financial support payments to a group of asylum seekers were not fair.
The Court of Appeal further found that when an asylum seeker is destitute, deny-
ing support would breach that individual's right not to be subject to inhuman or
degrading treatment.90 Before the Court of Appeal, in March 2003, the principal
issue was the question of procedural fairness - a core aspect of a rule of law analy-
sis. However, in July 2003, the High Court's decision in the case of S, D, and 71
demonstrated both that the human rights aspect of the issue could well overtake
84 The government of course claims that this was the interpretation it intended all along for its leg-
islation. The result of this decision is likely to be two things: First a redrafting of the Migration
Act to make fewer and fewer elements formally subject to the privative clause and thus give the
executive a wider scope for actions; and second an expansion of the scope of jurisdictional error'
to give the judiciary more scope for permissible review This latter approach was evidenced
between 1998 and 2002. It is also notable that the 1992 Lim decision, above n 15, stopped just short
of approving the government's entire agenda by preserving limited scope for judicial review of
detention.
85 Above n 73, paragraph 118.
86 ibid paragraph 116.
87 ibid at paragraphs 111 and 112.
88 The Queen on the Application of 'Q' & Others vSecretary State for Home Department Court of Appeal
(Civil Division) [2003] EWCA Civ 364.
89 Q v Secretary of Statefor the Home Department [2003] EWJ No 718, [2003] EWHC 195 Admin.
90 European Convention on Human Rights, s 1(3) 'No one shall be subjected to torture or to inhu-
man or degrading treatment or punishment'
91 The Queen on theApplication of S, The Queen on the Application ofD and The Queen on the Application of
Tv The Secretary of Statefor the Home Department [2003] EWHC 1941 (Admin).

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
the narrower procedural fairness concerns and that the battle between the execu-
tive and the courts on this question is not over.92
At issue is the latest step in the United Kingdom's legislative crack down on
asylum seekers. In January 2003 section 55 of the Nationality Immigration and
Asylum Act 200293 came into effect, removing the capacity of the Secretary of
State to provide support to anyone who does not claim asylum'as soon as reason-
ably practicable' after arriving in the United Kingdom. The only exception is to
allow the Secretary of State to take action necessary to avoid breaching the indi-
vidual's rights under the European Convention on Human Rights. The accepted
objective of the new provision is to ensure that those who are not genuine asylum
seekers do not receive assistance and that those who have another source of sup-
port do not receive state support. The five test cases which came to court along
with Q all involved individuals who had sought support within a day or two of
arriving and included some rejections containing fairly obvious bureaucratic
errors. While some of the stories had not been believed, Justice Collins clearly
pointed out that the applicants' credibility had not been adequately tested nor had
they been given a chance to address the supposed inadequacies of their evidence.
The cases of S D and T share the characteristics of good test cases. The evidence
regarding S includes a statement from a physician that he had lost 14kg since arriving
in the United Kingdom and that he was severely underweight and malnourished.
The ruling in Q like S157, contained something for both sides. While the asy-
lum seekers were successful in their applications for judicial review, the Court of
Appeal ruling set out clear guidelines for how the government could improve its
procedural approach to the denial of support and thereby bring its law within the
ambit of fairness. Measures required included better signage at airports, additional
training for interviewers, opportunities for applicants to address directly areas of
their story the decision maker is concerned about, individualised rather than for-
mulaic questioning. The Court of Appeal also made clear that the degree of desti-
tution required to trigger the European Convention on Human Rights was
'lower' than that written into other related statutes and that a'real risk' of this 'state
of degradation' was not sufficient. Instead, the Court indicated that applicants qua-
lifying for the exceptional provision of section 55 would be'verging on' a state of
degradation.94 The requirements for fairness are set stringently by the Court
because'Section 55(1) is or potentially is of draconian effect ...'95 It is for this rea-
son that the Q decision can be read as emphasising the rule of law - it states that
the government can take avowedly draconian action provided it does so'fairly.
The decision in S, D and Tillustrates, however, the potential slippage contained
in this type of narrow rule of law reading of the situation.96 This later ruling is
92 The Home Office announced on 31July 2003 its intention to seek leave to appeal to the Court of
Appeal.
93 Nationality, Immigration and Asylum Act 2002, ch 41 s 55.
94 n 88 above, paragraph 119. The state of degradation required is drawn from Pretty v United Kingdom
(2002) 35 EHRR 1.
95 n 88 above, paragraph 71.
96 An earlier decision, R (D and H) v Secretary of Statefor the Home Department [2003] EWCA Civ 852
had suggested that the matter might be settled, and refused permission to appeal a rejection of a
judicial review application on the basis of Q.

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
dominated by the issue of inhuman and degrading treatment. Only one of the
three applicants was successful on the fairness argument, despite Justice Kay's con-
clusion that signage at Heathrow did not meet the Q standards and that at least
one of the rejection letters contained a straightforward bureaucratic error. All
three applicants, however, were successful on the human rights argument. Justice
Kay (like Justice Collins in the original Q decision) traces ajurisprudence of des-
titution from at least 180397 and concluded echoing the words of Lord Justice
Simon Brown, that
No one should be surprised if, within a short period of time, the demands of Article
3 require the relief of damage to human dignity which is caused by '... a life so
destitute that ... no civilised nation can tolerate it'.98
The tenor of this ruling is different, with this appeal to what Justice Collins had
called the'law of humanity' overtaking the questions of the rule of law. The result
is a much more significant constraint on governmental action.
The battle between United Kingdom's executive and judiciary over the
advance of immigration law crackdown measures has not been as one sided as that
in Australia. For example, in two 1996 decisions, migrants with no legal status
were given some legal protections in regard to publicly funded housing." Lord
Justice Staughton emotively declared, '... an illegal immigrant is not an outlaw,
deprived of all benefit and all protection which the law affords'.100 These cases do
not, however, raise the same rule of law principles as the 2003 events, nor do they
check executive power. Vital in each case was the fact that the applicants had initi-
ally had some valid form of permission to remain in the United Kingdom, and
that the immigration bureaucracy had not taken any action to remove them.
More importantly for the argument I am making here, the rule at stake - that an
illegal migrant is not a'person' for the purposes of some provisions of the Housing
Act 1985 - is one of judicial rather than executive construction.0"' The 2003 cases
are distinct in that the judiciary attacks a clear executive and legislative expression
of intent.
Asylum seekers - as completely non-rights bearing strangers - have also had
some victories prior to the 2003 cases. The decision of the European Court of
Human Rights in D v The United Kingdom102 is the most far-reaching. D is based
not in a rule of law ideology, but straightforwardly in Article 3 of the European
Convention on Human Rights. In D, the Court held that it would be inhuman to
expel an unlawful alien in the terminal stages of AIDS related illness to a place
with no adequate medical treatment, no shelter, and no family support. Impor-
tantly, the receiving state itself would not be in breach of Article 3 (were it a
97 Rv Inhabitants ofEastbourne (1803) 4 East 103, referred to at n 89 above, paragraph 23.

98 ibid paragraph 33.
99 Castelli above, paragraph 33. Castelli v City ofWestminster [1996] EWJ 4254 (CA); Akinbolu v Hackney
BC [1996] NLOR No 3383 (CA).
100 Castelli, ibid paragraph 68.
101 R v Hillingdon London BC ex parte Streeting [1980] 1 WLR 1425; R v Environment Sec ex parte Tower
Hamlets [1993] QB 632.
102 (146/1996/767/964).

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
signatory), the inhumanity arising instead from the act of return in the particular
combination of circumstances.
Subsequent United Kingdom courts have been uneasy with the D ruling.
Most recently, in the October 2003 Court of Appeal decision in N v The Secretary
of State for the Home Department,103 Lord Justice Laws emphasised the 'territoriality'
principle of the European Convention on Human Rights and characterised the D
decision as an exception to an exception, based more in compassion than in
right.104 Ms N, a Ugandan national suffering from AIDS, found no relief in Arti-
cle 3. The N ruling is important for my argument in two ways. First, it is not a case
where the rule of law ideology is invoked. One of my central points is that the
rule of law itself may well be equally or even more important to positive out-
comes for those without domestic legal rights than any human rights provision.
Second, Ndemonstrates the point that any advancement based on rule of law that
Q and S, D and Trepresent is not yet a fully established trend. It is instead a vision
on the horizon.
These cases themselves are not enormous victories, providing as they do the
capacity to implement draconian measures in accordance with the rule of law.
Nonetheless, S, Tand D also says that the state cannot leave people to starve, even
when it is convinced they have cheated and lied, that they have evaded the law
and that they seek to continue to do so. The clear bright US-THEM line of the
border is disturbed here, ever so slightly. The S, Tand D decision would not have
been possible without the Q ruling. That is, a narrowly framed rule of law asser-
tion opened the space for a much broader human rights analysis. While this is
relies on the European Convention of Human Rights, it also draws on the expan-
sive capacity of the rule of law itself.
This is a vital issue to turn to in considering the future of migration laws in
globalising times - what role might the rule of law come to play and how might
that role be related to international human rights instruments. It is too soon to say
whether S157, Q and S, Tand D signify in Australia and England a new willing-
ness of the courts to restrain the executive in matters of migration, whether the
courts are separating refugee matters from migration matters, or whether a new
version of the rule of law might emerge internationally from these beginnings.
Each of these possibilities would be welcome. The final section turns to consider-
ing what insights these cases may give us into the nation - migration - sover-
eignty relationship at the outset of the twenty-first century.
CHALLENGED SOVEREIGNTY AND THE RULE OF LAW
Given the importance of migration laws to'new' understandings of so

can look to cases such as these for insights into law, sovereignty, and
in globalising times. The way forward for migration law
time is caught between theoretical accounts of globalisation
103 [2003] EWCA Civ 1369.

104 ibid at paragraphs 37 and 38, as well as elsewhere in the judgment.
610 D The Modem Law Review Limited 2004

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
decreasing 'moral relevance' of borderso05 and the reality of asylum seekers literally
starving to death in London, all the while consulting their solicitors regularly. In
DavidJacobson's analysis, because borders have become less'sacrosanct' they'.., can
be "crossed," superseded and complemented by other kinds of authorities.'106 For
Hirst and Thompson, increasing attempts to control the movement of the poor will
reveal the'capriciousness' of the citizenship and will expose'exclusion' as'... a mere
fact, with no other logic or legitimacy than that states are fearful of the conse-
quences of large-scale migration.'107 Despite these assertions, prosperous nations
are not behaving as though the morality and legitimacy of their borders were drain-
ing away. Migration law challenges accounts of globalisation with its persistence
and its authority. I want to take up two aspects of that challenge to conclude this
article. First, I consider the extent to which human rights law has something to say
to migration questions. Second, I examine what these cases indicate about the
potential for a robust rule of law ideology in the realm of migration law.
Human rights law occupies an important place in legal accounts of globalisation.
It is one of two important examples of legal arenas where the sovereignty is eroding
as nations themselves are increasingly called to account for their actions and are
sometimes even held to account for them. This aspect of the stock story of legal
globalisation points up the proliferation of human rights treaties since the end of
the second world war, and especially the development of international enforcement
mechanisms to go along with them, as the vital developments. Human rights law
has advanced enormously, and quickly, even growing in puissance in the space of
the last decade. The debate about whether international law is really law is falling by
the wayside of this and other developments. I am interested in the extent to which
these new and forceful norms and laws constrain states in questions of migration
law, and in following this consideration to a reflection on the rule of law.
Both David Jacobson and Saskia Sassen have argued that human rights norms
are shifting the issues in questions of immigration. Jacobson argues that citizen-
ship is losing its importance as a variety of rights are increasingly accorded to'peo-
ple' and 'residents' and that this shift in turn enhances the importance of
international human rights codes.108 With different emphasis, as her concern is
theorising globalisation, Sassen argues that the most important distinction is
now between those with legal status in a state and those without it.109 She argues
that human rights instruments are vital to this transformation, which is in turn
part of the devaluation of citizenship. Both these arguments are sharply insight-
ful, but neither extends precisely to the point I wish to examine here. While the
advance of international human rights law has been important to improving the
legal, and sometimes actual, conditions of individuals living in places where they
do not hold citizenship, they have not created a'right' to live in a place where one
does not hold citizenship. This is in part the point that Sassen makes by emphasis-
ing the distinction between legal status and the lack of it. Human rights are still
105 D. Held,'Law of States, Law of Peoples: Three Models of Sovereignty' (2002) 8 Legal Theory 1-20.
106 Jacobson, n 32 above, 132.
107 n 21 above, 267-268.
108 n 32 above.
109 n 9 above, 95.

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
dependent upon a venue in which to lay claim to them. The proliferation of such
venues, and their location at international, regional, national, and subnational
levels is part of the legend of globalisation. People who are (il)legal, however, are
most often outside the law altogether. They do not have access to any of these
venues - and thus globalisation has multiplied their exclusion. The proliferation
of human rights instruments has not led automatically to a similar proliferation of
the rule of law. More than an agreed upon code is required for law to function as
rule of law.
The claimants Q S, Tand D derive their access to the legal system from the
United Kingdom's commitment to the Refugee Convention (confirmed in the
European Convention on Human Rights). They are not 'illegal' when before the
Court because of their claims for asylum in Britain. Once their claims have been
determined, if they have been determined negatively, the United Kingdom will
have the sovereign right to remove them beyond the borders of the nation, no
longer constrained by the human rights based obligation to keep them from star-
vation. Beyond the border of the nation, however diminished it may be, they
become legally invisible, starving or not. On the other hand, once asylum seekers
have some legal status, they have access to a human rights regime, and in many
nations to several layers of such. But entry itself remains largely beyond human
rights protection, and the prosperous nations are doing all they can to make it
harder and harder.
The International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families11o is instructive in considering the effects
of international human rights law in migration questions. Twelve and a half years
after being opened for signature, ratification and accession this treaty came into
force on 1July 2003 in the 22 countries which have ratified it."11 None of the pros-
perous Western nations involved in the present immigration crack down have
taken the preliminary step of signing. Even if the Convention were globally in
effect and all nations chose the available option of allowing individuals to access
its complaints procedure,112 it is not a source of human rights for border crossing.
Article 79 explicitly states that, 'Nothing in this present Convention shall affect
the right of each State Party to establish the criteria governing admission of
migrant workers and members of their families.' Like the Refugee Convention,
it protects the rights of those who are already there, but does not create any rights
to get there. The Convention protects both 'non-documented' or 'irregular'
migrant workers and 'regular' migrant workers, but it protects the'regular' more.
This is achieved both by including separate provisions which apply only to this
group and by not prohibiting discrimination on the basis of immigration status.13
The Convention is also not extended to cover migrants generally, only those
110 International Convention on the Protection of the Rights of All Migrant Workers and Members
of Their Families, A/RES//45/158 (18 December 1990) UN General Assembly 69'h Plenary Meeting.
111 In order of ratification: Egypt, Morocco, Seychelles, Colombia, Philippines, Uganda, Sri Lanka,
Senegal, Bosnia-Herzegovina, Cape Verde, Azerbaijan, Mexico, Ghana, Guinea, Bolivia,
Uruguay, Belize, Tajikistan, Ecuador, El Salvador, Guatemala, and Mali.
112 Article 77.
113 The non-discrimination provision is in Article 7. Articles 36 to 56 comprise'Part IV - Other rights
of migrant workers and members of their families who are documented or in a regular situation'

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
engaged in 'remunerated activities' in other states. One must be already engaged in

such activities to come under the umbrella of the Convention, thus ensuring that
those moving to seek work are not protected. Finally, the Convention explicitly
supports cooperation to ensure that irregular movements will be minimized in
the future - in other words, crack down measures.114 I would agree with Sassen
that this is 'one of the most important documents seeking to protect the rights of
migrants,'115 but its many weaknesses and limited application mean this statement
is strongly ironic.
In the European context, some additional rights based claims are possible.
Some migrants have made important rights based gains on the basis of the Eur-
opean Human Rights Convention's protection of a right to family life. This has
been important in removing discriminatory provisions once one member of the
family already has legal status of some sort in a European nation. 16 That is, it has
created a right to cross a border for 'reunion' purposes. Also, the EU provisions
allowing free movement within Europe do obviously create rights to movement
which did not previously exist. These rights, however, are not extended as human
rights constraining governments, but as part of an economic package that govern-
ments choose to participate in. As movement within Europe is tied to citizenship
in a member state, these provisions also serve to reinscribe the importance of citi-
zenship as opposed to mere legal residency status, or, lower still on the hierarchy,
being 'human' and thus entitled to'human' rights.
The proliferation of human rights norms over the last half century has not
markedly increased rights entitlements at the moment of border crossing, nor
has it significantly increased access to human rights for those with no legal status,
those 'illegals' beyond the reach of the law but at the centre of present rhetoric.
Nonetheless, the recent cases in England and Australia suggest that a shift of some
sort may be underway. That shift is related to the rule of law - and to its protean
potential. This in itself draws on the expansion of the international human rights
regime, but does so in subtle, unpredictable ways. The movement here is harder to
trace, and its future direction is harder to envision, than is the case for issues at the
core of traditional rights for which national borders are the limit of the universe.
Examining how the rule of law achieves this variation is also indicative of how
sovereignty may be transformed in this realm of strongest resistance.
The rule of law has a range of meanings. Ever since the United States began
shipping prisoners to Guantanamo Bay in January 2002,117 lawyers around the
world have been calling on that government to adhere to the rule of law, by which
is meant rules of criminal law and procedure familiar in Western nations and
114 Articles 64 to 71 comprise 'Part VI - Promotion of sound, equitable, humane and lawful condi-
tions in connection with international migration of workers and members of their families.
115 n 9 above, 94.
116 A review of how this has affect circumstances in the Netherlands is presented in S. K. vanWalsum,
'Transnational Mothering, National Migration Policy and International Human Rights Law'
paper presented to the Citizenship, Borders, Gender Conference, Yale University, 8-10 May 2003,
copy on file with author.
117 'First Batch of Prisoners Heads to Guantanamo' (11 January 2002) St Petersburg Times at http://
www.sptimes.com/2002/01/11/Worldandnation/First-batchof-prison.shtml (last visited 9 August
2003).

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
certain aspects of international rules of war. In this setting, the rule of law has had
considerable public airing recently. As a jurisprudential concept and ideological
package, the rule of law has long had 'thick' and 'thin' versions. The 'thin' hinging
primary to the principles such as the necessity for the law to be known, to apply
to all, to be applied impartially; and the'thick' stretching to encompass some kinds
of human rights protections, especially those associated with civil and political
rights. Peter Fitzpatrick's analysis of the tension in the rule of law concept which
provides it with both its capacity to ensure stability and predictability and its need
to be adaptive and responsive gives insight into the diverse accounts of the rule of
law.18 Fitzpatrick argues that each aspect is essential to explaining the pervasive
shape-shifting presence of the rule of law. As law is an autonomous system, it
must ensure stability and predictability. However in order to maintain its auton-
omy from other social systems it must be adaptive.19 The tension Fitzpatrick
describes as ensuring the rule of law's 'lawness' accounts for movement within
the idea of the rule of law itself Once the rule of law takes root, its potential for
expanded meaning is also grounded.
The new cases in Australia and England where the courts have said no, at least
tentatively and partially to governments, are grounded first in the rule of law. But
already, in each set of reasons (or decisions in the English setting) the rule of law
rationale is moving to human-rights-as-rule-of-law reasoning. Neither S157 nor
Q S, Tand D are solely concerned with the rule of law - and the transformative
potential of these arguments lies in the 'what else' that may be next. While the
Australian High Court uses the constitutional text to reach its conclusions and
the English Courts use the European Convention on Human Rights, the rule of
law because of the malleability of its meanings is also infused with the broader
meaning. It would have been possible in each instance for the courts simply to
continue deferring to executive actions in these cases. They did not - that action
alone is another dimension of the rule of law. Any movement in what may con-
stitute the rule of law in the realm of migration law will have a long reach in
questions of migration law.
Considering the potential of the rule of law to be moved in this way also raises
a question of how the nation - migration law coupling may yet reveal a transfor-
mation in sovereignty. Rule of law is closely tied to sovereignty when sovereignty
entails exclusive law making and law enforcing authority in a territory. In globa-
lising times, this version of the rule of law is being pushed and stretched as well.
David Held writes optimistically of a cosmopolitan law which would accompany
his cosmopolitan sovereignty; 'Sovereignty can be stripped away from the idea of
fixed borders and territories and thought of as, in principle, an attribute of basic
cosmopolitan democratic law which can be drawn upon and enacted in diverse
realms ...'120 Hirst and Thompson assert that the rule of law is more important
than ever, because of the need to build community in the absence of other
118 See n 45 above, ch 3 'Law' See also P. Fitzpatrick,' "Gods would be Needed": American Empire and
the Rule of (International) Law' (2003) 16 LeidenJournal of International Law 429.
119 In'Gods would be Needed' ibid he states:'If law subsists in between determinate position and what
is ever beyond position, then what moves law is the antinomy between these two dimensions
combined with their necessity for each other'
120 n 105 above, 32.

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00
Catherine Dauvergne
commonalities - both within and outside the nation.121 Transformations of how

courts respond in questions of migration suggest movement in the rule of law,
and therefore in sovereignty. The shifts are subtle, tentative, potential. Yet given
the otherwise insurmountable obstacle that traditional sovereignty would seem
to present to meaningful and equitable migration law reforms, any such potential
is worth nourishing.
Globalism's optimists suggest that rule of law may become unhinged from the
nation and its sovereignty. A free floating, global, rule of law in the realm of
migration has the potential to allow the global inequities of migration to receive
new scrutiny: for starvation to matter legally, even elsewhere. This potential is so
breathtaking it is worth considering imaginatively and fostering through advo-
cacy, even if its theoretical supports remain shaky.
121 n 21 above, 277-280.

130.125.140.171 on Wed, 10 Jan 2024 15:05:24 +00:00

Dauvergne SovereigntyMigrationRule 2004

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Dauvergne SovereigntyMigrationRule 2004

Uploaded by

Copyright:

Available Formats

Sovereignty, Migration and the Rule of Law in Global Times

Author(s): Catherine Dauvergne

Stable URL: https://www.jstor.org/stable/3699155

This content downloaded from

There is an international moral panic afoot about migration. Newspapers around

This content downloaded from

NATION, MIGRATION AND GLOBALISATION

Worldwide regulation of migration was a twentieth century invention. A

The relationship of migration law and national identity is easiest to

? The Modern Law Review Limited 2004 589

This content downloaded from

590 ? The Modem Law Review Limited 2004

This content downloaded from

? The Modem Law Review Limited 2004 591

This content downloaded from

592 ? The Modem Law Review Limited 2004

This content downloaded from

? The Modem Law Review Limited 2004 593

This content downloaded from

classic view of sovereignty underpins their analysis. For them,'... "sovereignty" in

594 ? The Modem Law Review Limited 2004

CONTEMPORARY OVERLAPPING MIGRATION PHENOMENA

The stock story of globalisation is one of fluidity. More and more

? The Modem Law Review Limited 2004 595

This content downloaded from

Refugees and refugee law

The extent to which refugee law can be understood as a constraint on national

37 D. Held, A. McGrew, D. Goldblatt and J. Perraton, Global Transformations: Politics, Economics

596 C The Modem Law Review Limited 2004

This content downloaded from

Finally, the Refugee Convention is a scant constraint on sovereignty because

O The Modem Law Review Limited 2004 597

This content downloaded from

Illegal migration and globalised fear

598 C The Modem Law Review Limited 2004

This content downloaded from

An important threshold issue for talking about illegal migration is attempting

o The Modem Law Review Limited 2004 599

This content downloaded from

without law. Similarly, efforts to increase enforcement of such provisions inevita-

600 C The Modem Law Review Limited 2004

This content downloaded from

to surrender. Nations assert their 'nationness' by cracking down on illegal migra-

? The Modern Law Review Limited 2004 601

This content downloaded from

stringent requirements, for example in regard to identity, which are brought in by

The best and the brightest

602 3 The Modem Law Review Limited 2004

This content downloaded from

70 As one example, Australia's Minister of Immigration stated in March 2003:

C The Modem Law Review Limited 2004 603

This content downloaded from

considering issues of global equity in migration policy because sovereign control

604 ? The Modern Law Review Limited 2004

This content downloaded from

of migration regulation, executives have traditionally found themselves accorded

SAYING NO TO GOVERNMENTS: EXCEPTIONS OR

73 PlaintiffS157/2002 v Commonwealth ofAustralia [2003] HCA 2 (4 February 2003).

O The Modem Law Review Limited 2004 605

This content downloaded from

77 Other amendments included reigning in judicial interpretations of the Refugee Convention by

606 0 The Modem Law Review Limited 2004

This content downloaded from