Sojourners and Survivors: Two Logics of Constitutional Protection

Globalization and Human Rights, 2002

Noncitizen populations pose a quandary for the administration of human rights because human rights norms have generally been enacted within the nation-state system and administered as the rights of citizens. While the human rights regime is international, its greatest influence has been to establish standards for states’ obligations vis-à-vis their own citizenries. Hence, even in Western states that are vocal champions of human rights, policymakers debate the extent to which they are responsible for protecting the full range of human rights for noncitizen migrants, particularly migrants lacking state authorization. Universal personhood is subordinated to citizenship as a basis for rights. The violations and vulnerabilities of migrant rights in the U.S. can be understood as extensions of a cultural logic in which even human rights are framed as entitlements exclusive to citizens. My analysis suggests that popular and political discourse in this context conceptualizes citizenship less in objective terms (as a legal status) than as a relational identity defined in opposition to “aliens,” particularly in reference to labor migrants from less developed states. This constructed opposition—positioning migrants as lacking a legitimate claim to rights—has two dimensions. The first dimension of the citizen-alien opposition rests on logics grounded in liberal notions of contract and property that position migrants as criminals, trespassers, and usurpers who have forfeited claims to rights by virtue of individual breaches of contract or law. The second reflects a neocolonial logic that legitimates differential claims to rights in accordance with an individual’s position in a racialized international division of labor, equating the privileges that accompany First World status with a greater entitlement to rights. These oppositions between citizens and aliens pose obstacles for migrants’ claims to rights based on universal personhood, even within a state that formally supports international human rights norms.

Migration and Social Protection

In a time of increasing migration, citizenship as a form of classification has come to assume the kind of importance once reserved for other kinds of discriminatory and exclusionary classifications of status. Distinctions in ancient times or in ante-bellum United States between free men and slaves, in French and Portuguese colonial empires between évolués or assimilados and other colonial subjects, in Nazi-occupied Europe between Aryans and Jews and Roma, or racial classifications in Apartheid South Africa, were all means of granting or denying social and political rights. Although citizenship has many other aspects, for migrants its primary significance is the extent to which it enables them to gain access to a territory and to rights within it. In the contemporary world, having one’s human rights protected and enforced is usually dependent upon one’s status in a state. The rights of non-citizens sometimes appear to be legitimately overlooked when no particular body or state is assigned obligations towards them in the place where they are living. This can be seen most clearly in the case of migrants, both those moving to a country in which they will be non- citizens and those who, in being described as newcomers, are deprived of full citizenship. Migrants’ rights vary according to the state within which they find themselves, and how they are categorized or classified in those states: for example, whether they are refugees or migrant workers, and according to the state’s current policies about these groups. International conventions on refugees make it clear that people rec- ognized as refugees should enjoy broadly the same rights as citizens in their country of refuge. However, the threshold of a grant of refugee status is extremely high, and governments often try to avoid these responsibilities by requiring unrealistic levels of proof of persecution or danger. Many more international migrants, however, do not seek refugee status but travel for the purpose of finding employment. Of the estimated 214 million migrants in the world today, about 16 million are refugees (United Nations, 2009). Rights of labour migrants have been even more contested than those of refugees, and despite attempts to produce international agreements on their rights, little has been ratified. This chapter explores the rights of different kinds of migrants in the context of contemporary and historical understandings of citizenship. Its purpose is to explore some key assumptions contained in contemporary uses of the term, especially as they pertain to welfare rights. By focusing on these, we try to show that many rights that are taken for granted are linked to, though not necessarily dependent on, citizenship, and that the absence of citizenship status can enable governments to limit the rights of non-citizens, particularly migrants.

Citizenship Studies, 2004

Citizenship Studies, 2010

This essay seeks to show that liberal law continues to justify and legitimize displacements of minority populations, even in an age of universal human rights. As demonstrated by the Israeli court’s 1988 decision legitimating the deportation of Mubarak Awad, it is citizenship and immigration laws that provide juridical justifications for contemporary ethno-national settler projects. In the aftermath of a territorial conflict that defines or redefines the bounds of the state, native minority populations are vulnerable to being legally recast as “aliens” or “virtual immigrants.” National conflict may thus be transformed by legal formalism into a question of immigration law, allowing the power relations that produce state sovereignty to slip into the background.

2015

Georgia, Crimean Tatars in Uzbekistan and Kazakhstan, Ingushetians and Meskhetian Turks in Southern Russia, to name a few (Ginsburgs 1966; Helton 1996). While the process of exclusion often occurs during periods of state creation or state transformation, it should be noted that the ways in which states determine membership and access is fluid. Historical migrations are often the first link in the causal chain that gives rise to statelessness. For example, as P.P. Sivapragasam discusses in Chapter 5, large numbers of Tamils were brought to work in Sri Lanka in the late 19 th Century and kept isolated on plantations where they were later denied citizenship in Sri Lanka post-independence. More recent migrations have similarly created nationality problems, which, if left unaddressed, could also give rise to situations of statelessness. One case of reform is Germany, a country that for more than 40 years has played host to hundreds of thousands of people of Turkish origin, mostly guest workers and their descendants, who had settled there but few acquired the right to German citizenship until the law was amended in 2000.

Routledge, 2020

The book provides an in-depth discussion of democratic theory questions in relation to refugee law. The work introduces readers to the evolution of refugee law and its core issues today, as well as central lines in the debate about democracy and migration. Bringing together these fields, the book links theoretical considerations and legal analysis. Based on its specific understanding of the refugee concept, it offers a reconstruction of refugee law as constantly confronted with the question of how to secure rights to those who have no voice in the democratic process. In this reconstruction, the book highlights, on the one hand, the need to look beyond the legal regulations for understanding the challenges and gaps in refugee protection. It is also the structural lack of political voice, the book argues, which shapes the refugee’s situation. On the other hand, the book opposes a view of law as mere expression of power and points out the dynamics within the law which reflect endeavors towards mitigating exclusion. The book will be essential reading for academics and researchers working in the areas of migration and refugee law, legal theory and political theory. Table of Contents: Introduction I. The refugee Chapter 1 Who is a refugee? Chapter 2 Who decides who is a refugee? II. Democracy’s edges Chapter 3 Citizenship and the claiming of rights Chapter 4 Democracy between the need for institutions and demands of inclusion III. The legal conditions of refugees’ political voice Chapter 5 Institutions of refugees’ political participation Chapter 6 The role of associative rights for refugees’ political voice Chapter 7 Humanitarian government and the political membership of refugees Chapter 8 Representation of refugees in international forums Outlook

Third World Quarterly, 2003

European Journal of Cultural Studies, 2007

Journal of Politics, 2021

This article identifies and critiques the continued use of political expulsion – or exile – in American communities, tracing common threads tying current practices together and analyzing the relationship between contemporary versions of exile and contested meanings of membership. Expulsion, I contend, is boundary-construction in the guise of punishment or harm prevention. While expulsion may appear at first glance to be deeply illiberal, it plainly remains part of the liberal governing toolkit. Its persistence challenges commonly held beliefs about liberal-democratic citizenship being a secure status premised on the voluntariness of membership, toleration for a plurality of moral values, and state neutrality. In exploring these questions, I consider three contexts in which current exile practices commonly manifest: judicial banishment, expulsions rooted in the moral emotion of disgust, and the banishment of marginalized community members. I argue that we ought to recognize the practices outlined here as being fundamentally exilic, despite the apparent banality that tends to depoliticize them. Decisions to expel outline what the expelling community deems unacceptable in a member, and so offer a way of defining the conditions of belonging.

Cultural and Pedagogical Inquiry, 2010

(I wrote this paper for a policy analysis class, and had not really intended to put it up here, but I find my mind turning so often to people in Ukraine and elsewhere who find the border crossing them vs. the other way around: I also think often of my friend, who came to Canada and told me the story of flushing her Yugoslavian Passport down the toilet in her disillusion and disappointment. It is a reminder of how emphemeral citizenship is.) ABSTRACT There are millions of people in the world today who ‘reside’ in no place. Technically, though, no place simply means a non-existent place, which by extension annuls the existence of these people. May of these are from areas where they not recognized as citizens, and from where they have been uprooted because of war and related upheavals. In these instances, these have no other choice but to seek other places to live. It is indeed, when the doors are shut and they are not accepted in the new places that they become denationalized and trapped in ‘no-man’s land.’ Such acts of exclusion are dehumanizing, painful and should not be accepted in our world. In this paper, I argue that this widespread problem exists due to lack of basic citizenship and human rights possibilities. The problem is also attached to specific understandings of sovereignty and human rights where, in the case of a conflict, for example, whatever the nation-state almost always takes precedence over the fundamental rights of the individual and/or groups. Indeed, this problematic reality is discursively (as well as pragmatically) located within the human rights, and related governance debates, which always display some form of conceptual and practical disconnect between the nation-state’s right to refuse entry, and an individual’s right for asylum.

Issues in Legal Scholarship, 2000

2014

Sixty years on from the signing of the Refugee Convention, forced migration and refugee movements continue to raise global concerns for hosting states and regions, for countries of origin, for humanitarian organisations on the ground and, of course, for the refugee. This edited volume is framed around two themes which go to the core of contemporary ‘refugeehood’: protection and identity. It analyses how the issue of refugee identity is shaped by and responds to the legal regime of refugee protection in contemporary times. The book investigates the premise that there is a narrowing of protection space in many countries and many highly visible incidents of refoulement. It argues that ‘protection’, which is a core focus of the Refugee Convention, appears to be under threat, as there are many gaps and inconsistencies in practice. Contributors to the volume, who include Erika Feller, Elspeth Guild, Hélène Lambert and Roger Zetter, look at the relevant issues from the perspective of a number of different disciplines including law, politics, sociology and anthropology. The chapters examine the link between identity and protection as a basis for understanding how the Refugee Convention has been and is being applied in policy and practice. The situation in a number of jurisdictions and regions in Europe, North America, South-East Asia, Africa and the Middle East is explored in order to ask the question: does jurisprudence under the Refugee Convention need better coordination and how successful is oversight of the Convention?

Exiles have been victims of a form of institutional exclusion that characterized many polities in Latin America. This article puts forward two claims. First, that until recently their displacement was largely dismissed as basis for recognition of victimhood. In the Cold War era, this was due primarily to the exiles’ own perception of being militants willing to forego a personal sacrifice for their cause, an image they personified against the accusations of treason and betrayal of the nation that those in power projected onto them. Later, this lack of recognition of exiles as victims was retained due to the concentration of attention on prototypical victims of repression such as the detained-disappeared or the long-term political prisoners. The second claim put forward is that, while ignored as victims, exiles remained agents of their own destiny and reclaimed their abrogated national identity and citizenship. Being displaced and having lost the political entitlements of citizenship, they were forced to come to grips with past defeats, face present challenges, and reconstruct their future. It was under those conditions that exile had not just constraining effects, but also expanding effects. Exile also provided windows of opportunity to change statuses, upgrade skills, discover strengths, and develop new relationships. It thus often became a transformative experience, a kind of aggiornamento, which is analyzed here focusing on some of its impacts on the reconstruction of Southern Cone societies in post-dictatorial times.

Draft Presented at the Conference on Identities, …, 2003