International Migration, Human Dignity, and the Challenge of Sovereignty
June 11, 2014 (Updated October 15, 2015)
I want to thank the Scalabrini International Migration Network (SIMN) and Konrad Adenauer Stiftung for organizing this important gathering. We need more forums that treat migrants not as a “management” problem, but as potential agents and instruments of a more just, equitable and peaceful world. Our hosts do not only convene on these themes every year or two, but they live and promote this vision in their work each and every day.
Our panel’s topic is on the inviolability of human dignity, a concept rooted in the understanding that every person possesses inherent rights. In the international migration field, we witness the disastrous human toll exacted by state and non-state actors that violate rights and dishonor the concept of human dignity. We experience the baleful influence of states that think and act as if they are the exclusive source of rights for their citizens. We decry failed states that make no pretense of safeguarding the rights of their members. We see states in which the elite operate as if no social or moral compact binds them to their fellow citizens. We debate politicians who insist that persons without immigration status have no rights and are “illegal” and “alien.”
However, we also celebrate the way that human dignity and the rhetoric of rights have taken hold in our world. Human rights have been called the world’s secular religion (Weisel 1999, 3), although religious communities champion this cause as well. Rather than speak on human dignity and rights at the outset, I would like to address a concept that is used both to defend rights and to deny their exercise; that is, the concept of sovereignty. This concept, as it is used in political and public discourse, too often presents a barrier to person-centered, rights-respecting migration policies. Sovereignty has been called a legal fiction, but like other fictions it can have very concrete consequences. I will speak to the narrow use of this idea in the international migration debate and of the need to conceive of sovereignty in ways that honor human dignity.
By way of disclosure, I have spent most of my career working for an institution, the Catholic Church, which has had a long and complex relationship with sovereign states. The church’s historical assertion of sovereignty over spiritual matters (souls), its emphasis on the equality of individuals as the children of God, and its creation of a legal system (canon law) inspired the establishment of the modern nation-state (Siedentop 2014, 216-221, 252-254). Yet its teaching on individual free will, conscience and moral equality gave rise to the idea of subjective human rights (ibid., 243-247), which acts as a constraint on sovereignty.
The two treaties that constitute the Peace of Westphalia 1648 have been widely credited with ushering in the modern system of sovereign nation-states. In an interesting historical note, Pope Innocent X condemned the treaties in the papal bull Zelo Domus Dei as “null, void, invalid, iniquitous, unjust, damnable, reprobate, inane, empty of meaning and effect for all time.” (Philpot 2010). He was particularly concerned with the loss of Church property in Protestant regions, the fact that agreements on ecclesiastical matters had been made without papal consent and the toleration of Protestantism (Ryan 1948, 596-597).
Of course, the Catholic Church has since accommodated itself to nation-states and has become a unique kind of sovereign state. However, it does not conceive of sovereignty in the sense of the unconditional and “supreme authority within a territory” (Philpot 2010). Instead, it seeks to reconcile rights and sovereignty by teaching that states bear the responsibility to promote the common good and safeguard rights, even across territorial boundaries (John XXIII, §98).  This vision of sovereignty will be my frame of reference today.
As we meet, hundreds of thousands of desperate Middle-Eastern, African, Asian and Central American migrants are fleeing states that have utterly failed to safeguard their rights or promote their well-being. An estimated 3,279 migrants perished in the Mediterranean Sea in 2014 and nearly 3,100 have died through the first three-quarters of 2015, with hundreds of additional migrant deaths along the US-Mexico border, in Southeast Asia, in the Saharan desert and elsewhere (IOM 2015, IOM 2014, BBC News 2015). According to a recent article, Eritrean refugees are so ill-served by their state and so imperiled on their journeys that their only vestige of protection is the cell phone number of a single priest who they call from overcrowded smuggler’s boats and detention centers (Schwartz 2014).
The Syrian refugee crisis represents the failure of sovereignty on many levels, starting with the predations of the Assad regime and moving to the cascading failures of the international community to stem the Syrian civil war, to prevent the rise and spread of a murderous cabal of terrorists posing as a theocracy, to provide sufficient support to Syria’s neighbors that host millions of displaced persons, and to develop a generous and coherent response to the worst global refugee crisis since World War II. In January 2013, Bashar Assad attributed the crisis to disregard for a different kind of sovereignty, one that does not privilege rights but that stresses the “independence and territorial integrity of countries.” He said that “Syria has always been, and will remain, a free and sovereign country that won’t accept submission and tutelage.” To the Assad regime, which barrel-bombs and engages in chemical warfare against the Syrian people, sovereignty is a carapace for gross human rights violations.
In the United States, Europe and Asia, a different vision of sovereignty plays out in migrant interdiction, interception and detention policies that seek to prevent desperate people from reaching protection and to deter others from migrating (Kerwin 2015, 210-211, USCCB-MRS and CMS 2015, 176-177). Australia’s “Pacific solution,” for example, has been defended as an exercise of sovereignty aimed at stemming illegal migration and preventing abuse of the asylum system, but in practice it involves the interdiction of vessels packed with desperate migrants and their long-term detention. Similarly, the European Union’s system of border control and detention policies have been described as “an interlocking chain of diffusion processes whereby detention pressures and practices are exported from main migration destination countries to the periphery of the EU and beyond.” (Flynn 2014, 185). Supporting these policies have been private prison corporations to whom states have ceded their sovereign responsibilities in this area, making it far more difficult to ensure state adherence to rights norms (USCCB-MRS and CMS 2015, 185-186).
In the United States, the failure of sovereignty has been evident in the mass migration of unaccompanied children and families from Central America. The number of unaccompanied minors arrested after crossing the US-Mexico border increased from 38,759 in FY 2013 to 68,541 in FY 2014, and the number of persons arrested in family units – mostly young children and their mothers — rose from 14,855 to 68,445 (CBP 2015). These migrants are being driven by gang violence (some at the hands of US deportees), rampant criminality, police brutality, single-digit prosecution rates for murder, extreme poverty and broken families. Nation-states have failed in their responsibility to provide them a minimum level of security and opportunity, much less to create the conditions that would allow them to flourish at home. Yet the United States has mostly treated these children and young families as a threat to sovereignty, pressuring transit states to intercept them, bolstering border enforcement, and creating vast new family detention centers.
With notable exceptions like Germany’s response to the refugee crisis, this is a familiar pattern: the greater the failure of sovereign states, the larger the number of migrants, the more developed states invoke sovereignty to justify their inaction and to deny protection. US-supported migrant interception initiatives in Mexico have led to tens of thousands of arrests of desperate Central American migrants in 2015 and to the murder of migrants deported from the United States and Mexico (Nozario 2015). Sovereignty also trumps rights in US border regions where constitutional protections involving searches and seizures do not apply.
In addition, several US states have adopted “attrition through enforcement” policies that seek to make conditions so unlivable for unauthorized immigrants that they will be forced to leave. These measures – which deny fundamental rights as a means to an end – have been justified as a necessary step given the federal government putative failure to meet its sovereign responsibility to secure the nation’s borders.
Can we reclaim the idea of sovereignty and put it in service to human dignity and rights? In its original sense, sovereignty meant the authority to command and be obeyed within national boundaries and to prevent incursions from without. Over the course of time, the sovereign’s legitimacy has been variously located in natural law, divine law, the supreme law of the land (reflected in constitutions), and the will of the people.
Jean Bodin, a 16th century French philosopher and early theorist on state sovereignty, viewed the sovereign as the source of social order and the law, constrained only by divine or natural law (Turchetti 2014). A century later, Thomas Hobbes created the fiction that citizens transferred and alienated their rights to the sovereign (the Leviathan) which then exercised absolute authority over them. Legal positivism, which arose in the late 18th and early 19th centuries, holds that the law consists of the fixed, established and obeyed rules of the sovereign, apart from any moral code or natural law constraints (Green 2003).
In the early 20th century, “pluralist” political and legal theorists, like the Anglican priest John Figgis, sought to qualify an absolutist view of state sovereignty by emphasizing the role of “small associations” in society (Figgis 1913, 48-49). The pluralists argued that human development occurred through a process of interpenetration with self-governing institutions like families, churches and labor unions, which served as intermediaries to the state. According to the pluralists, civil society associations could only perform this role if they could operate free from state control. Today, liberal democracies recognize strong non-state affiliations to be a central characteristic of robust states.
The ascendancy of subjective human rights, defined as a force or power than inheres in individuals which states do not create and cannot revoke, has offered the greatest challenge to the notion of unqualified sovereignty. According to the eminent scholar Brian Tierney, canon lawyers in the 12th and 13th centuries first recognized subjective human rights in their commentaries on Gratian’s Decretum – A Concordance of Discordant Canons (Tierney 1997, 56-77). The Decretum, which appeared in 1140, was a compilation and synthesis of centuries of canon law by the teacher, scholar and (likely) monk Gratian. The canonists spearheaded the intellectual shift in the conception of “nature” from “an objective and harmonious hierarchy,” to a “force or power inherent” in human persons (Siedentop 2014, 244). As such, they privileged human agency and freedom (ibid.).
By 1776, the US Declaration of Independence spoke of the “unalienable” rights which governments had been “instituted” to secure. In the second half of the 20th century, human rights instruments further eroded the absolutist view of sovereignty. The Universal Declaration of Human Rights calls on states to promote and achieve its inventory of rights and freedoms. Likewise, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights require states to safeguard the rights of persons within their territories.
In criminalizing genocide and compelling states to prevent and punish it, the Convention on the Prevention and Punishment of the Crime of Genocide constrained sovereignty in both its internal (authority within a territory) and external (freedom from outside interference) dimensions. The Report of the International Commission on Intervention and State Sovereignty in 2001 recognized the responsibility of states to protect the rights of persons in states that persecute and grossly violate the rights of their own residents.
The concept of human security has further contributed to the evolution in the meaning of sovereignty by emphasizing the role of states – individually or in collaboration — in creating the social, economic and political conditions that allow persons to flourish (Vietti and Scribner 2013). Likewise, the 1980 report of the Independent Commission on International Development, the 1982 Report of the Independent Commission on Disarmament and Security (the “Palme Commission”), and the UN Human Development Report 1994 all strike the theme that lasting security depends on development, co-operation between states, and human security.
International law places affirmative duties on states to safeguard the rights of foreign nationals. The concept of surrogate protection, for example, holds that refugees who cannot rely on their home states for protection can turn to other states and the international community (Goodwin-Gill and McAdam 2007). Article 33 of the 1951 Convention Relating to the Status of Refugees prohibits states from expelling or returning a refugee to a state where his or her “life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Finally, the concept of the rule of law has evolved from its narrow original sense (dating to the ancient Greeks) of making rulers accountable to the law, to a richer understanding that speaks to the need for properly constituted states, rights-respecting laws, and procedural protections (Tamanaha 2010, 110).
Some scholars aver that the post-Westphalian system of nation-states is in irreversible decline, soon to be overtaken, if not already captured, by market forces (Bobbitt 2002). Others argue that citizenship has lost its status as a distinctively intense, valued and affective bond, and is becoming an affiliation among many others (Spiro 2008). If so, this may be less cause to celebrate than to assess the manifold responsibilities that we expect and depend upon states to meet.
First and foremost, states confer citizenship, which Hannah Arendt characterized as “the right to have rights.” Arendt wrote persuasively about how the revocation of citizenship in Nazi Germany meant the loss of any political institution willing to vindicate the rights of its Jewish residents. In addition, states protect their members from foreign domination and oppression. At their best, they also contribute to a level of social cohesion and ordered liberty that promotes the common good; give people a say in the decisions affecting their lives; and place decision-making in the hands of the most affected and knowledgeable communities. In addition, the system of nation-states safeguards the rights of distinct political, social and cultural groups to self-determination. States have also united to create supranational and international institutions to respond to needs and challenges that cross borders.
What set of institutions or affiliations will meet all of these needs in the future? Some argue that any new world order is just as likely to be a dystopia of warring tribes, as a beneficent and cohesive set of institutions devoted to human rights, freedom and cosmopolitanism. In any event, we will continue to depend on states — for better and worse — to defend and safeguard our rights into the foreseeable future.
To make sovereignty a reliably positive force on international migration, we need to reclaim this concept in the public realm. To start, sovereignty is not only about national defense, border control, or homeland security. Sovereign states also exist to safeguard rights and (more broadly) to provide the conditions that allow their residents to thrive, which invariably requires that they maintain a level of social order, peace and cohesion. This purpose aligns well with the intuition that the people confer the state with authority and should benefit from its exercise of sovereignty.
This vision of sovereignty also reflects the view that the law is rooted in a broader set of values like justice, mercy and rights. In the international migration field, these values can be found in state action to create the conditions that allow individuals to live fully realized lives in their home communities, in the fair application of generous legal immigration and integration policies, in robust refugee protection systems, and in the sovereign exercise of discretion in immigration cases based on factors like the probability of an immigrant’s victimization at home and his or her family ties in the host nation.
Sovereignty should not force states to sit idly by while other states persecute their own residents. Nor should it immunize the rulers of predatory states from the consequences of their actions. Instead, it requires greater individual and collective state action to defend the undefended rights of citizens in other states, to intervene in situations of grave and sustained human rights abuses, and to protect forced migrants. Sovereignty also requires states to act collaboratively to respond to the growing litany of challenges – like peacemaking, international migration, climate change and security threats – that cannot be resolved unilaterally.
As the United Nations High Commissioner for Refugees has long argued and the European Court of Human Rights has held, the sovereign responsibility to protect refugees and others imperiled persons should be triggered wherever the state exerts itself and uses force (Von Sternberg 2015, 332-336).
Rights and the common good encompass all residents, not only citizens. In the aftermath Hurricane Katrina in 2005, many US unauthorized residents could not access relief and humanitarian assistance, and immigration officials reportedly conducted enforcement activities in emergency shelters. By contrast, after Hurricane Sandy in 2012, federal, state and local officials extended emergency and humanitarian aid without reference to status. From the perspective of sovereignty, this latter decision was the right one because it safeguarded rights that do not turn on citizenship.
Sovereign states must also recognize the legitimate role played by faith communities and civil society institutions in human development and well-being. Totalitarian states try to dominate and suppress other forms of association and seek to atomize people. However, independent associations foster human dignity and, thus, further a core purpose of states. They also serve to mediate the participation of individuals in the broader community and advance immigrant integration. To the furor of many politicians, even unauthorized persons can participate as full members in faith communities, civic associations and select US states and localities.
We cede so many of the concepts at work in the international migration debate that we lose the ability to frame migration in human terms and to develop appropriate legal, policy and operational responses to this phenomenon. Sovereignty is not solely about exclusion. It is also about realizing human potential and advancing the legitimate goals and aspirations of individuals, including through migration. Properly understood, sovereignty serves human dignity and rights. It is a concept we need to win and own.
 The Peace of Westphalia also affirmed the principle of “cuius regio, eius et religio” (to whom belongs the region, also belongs the religion).
 The Catholic view of sovereignty also requires legitimately constituted states (A.A. North 2003, 371-72; Kerwin 2009).
 “Bashar al-Assad’s Opera House Speech,” January 6, 2013. Washington, DC: Carnegie Endowment for International Peace. http://carnegieendowment.org/syriaincrisis/?fa=50513.
 Sovereignty is traditionally circumscribed by state borders. As such, it can both unify diverse people and serve as a flash point for strife since ethnic, religious and other groups typically spill over borders.
 In the migration debate, we see a strong strain of legal positivism in the insistence of politicians and anti-immigrant groups on full, zero-tolerance enforcement of unworkable immigration laws.
 My colleague Leonir Chiarello, c.s. has produced a superb primer on the evolution of the notions of human dignity, rights and individualism from medieval Catholic theologians and philosophers like Augustine, Thomas Aquinas, and William of Ockham, through the Renaissance, Reformation and Enlightenment (Chiarello 2015).
 Some argue that the litany of internationally recognized rights should be seen less in juridical terms, and more as a way to outline the conditions that allow persons to flourish (Glendon 1991). According to this view, rights language has become a way to describe what some traditions call the common good.
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