Sovereignty, Migration and the Rule of Law in Global Times

Publication Date01 July 2004
AuthorCatherine Dauvergne
Sovereignty, Migration and the Rule of
Law i n Global T|mes
Catherine Dauvergne
This article argues that in the present era of globalisation, control over the movementof 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
speci¢c 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 maybe emer-
ging as a counter to traditional executive free reign i n 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 de¢ned.The worldwide fear of terror has over-
lapped and intertwined with the fear of illegal migration.The prosperousWest is
under siege, this popular refrain tells us; the hordes are ascending. This paper
argues that the contemporary publ ic and political discours e about migration can
be accountedfor 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 in£uences 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 th eoretical and political
laws has four parts. First, I outline the traditional relationship between migration
Canada Research Chair in MigrationLaw,University of British Columbia,Vancouver, Canada.This
paper has bene¢ted from research assistance by Robert Russo and Agnes Huang. In addition I am
grateful to the audience at the 13
Commonwealth LawConference in Melbourne, April 2003 who
commented on an earlier version of parts of this paper.That partial version also became a UNHCR
working paper.
rThe Modern LawReview Limited 2004
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(20 04) 67(4) M LR 588 ^615
law and the nation and consider how this relationship ¢ts into narratives of glo-
balisation. I use the term migration law to refer to the domestic lawor 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 di¡ering combinations of these terms apply. I have simplychosen the
most succinct. In each case, these laws are in£uenced to greater or lesser extentsby
relevant international law. In the second partof the article, I describe the overlap-
ping relationship between three contemporary migration law phenomena: refu-
gee £ows, illegal migration and the inter national pursuit of th e 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.
Worldwide regulation of migration was a twentieth centu ry invention. Although
it was certainly the case that passports and border controls emerged at an earlier
point in time,
it was not until the beginning of the twentieth century that the
world was fully and ¢rmly divided by borders, and the requirement of passports
and visas to cross them.
What this means is that nation states and the system of
international law and sovereignty that developed along with them and helped
sustain them, managed for three centurieswithout comprehensive migration reg-
ulation. This is an important corrective for assessing the present relationship
between migration laws and nation states and for identifying the concomitant
understanding of sovereignty it implies. Despite this recent emergence in com-
parisonwith the key conceptsof nationand sovereignty, contemporary migration
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
The relationship of migration law and national identity is easiest to observe in
the NewWorld’s nations of immigration’. In Australia, Canada, and the United
States andNew Zealand the mythologyof the nation is bound upwith immigra-
tion. While this mythology draws strongly on the migration traditions of the
nineteenth and early twentieth century, national identities and values continue
to be inscribed in the on-going migration programs of these nations. Only some
1 This story is well documented i n J.Torpey,The Inventionof the Passport:Surveillance, Citizenship and
the State (Cambridge:Cambridge University Press, 2000).
2 A. Dummett and A. Nicol, Subjects, Citizens, Aliens an d Others: Na tionality and Immigration Law
(London:Weidenfeld and Nicolson,1990).
Catherine Dauvergne
589rThe Modern LawReview Limited 2004

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