Authority and
Responsibility of States
Section 1.4
Topics:
State Authority
Authority to Admit and Exclude
Authority to Expel
Constraints on Admission and Expulsion
State Authority and Citizenship
Appendix One: Multilateral International Agreements
Essentials of Migration Management
Volume One: Migration Management Foundations
Authority and Responsibility of States
Authority and
Responsibility of States
Section 1.4
Modern migration management aims at facilitation as well as control. States have the authority to
design and implement migration policy that serves both objectives. This Section reviews the foundations and current understanding of State authority in migration matters.
States have responsibilities as well as authority in migration matters. The relatively modest limits that
regulate the exercise of State authority on migration are primarily a result of international conventions agreed to by a State, and the principles of customary international law. States, as a matter of policy
rather than legal obligation, may, and usually do, choose to go much further than the minimum “must
do’s” and “must not do’s” required by international law.
Learning Objectives
•
identify the scope and limits of State authority in migration matters
•
describe current practice of State authority in migration matters
•
understand how migration policy is developed on the basis of State authority and international
law
•
identify State responsibilities that have a bearing on the development of migration policy
•
identify circumstances, opportunities, and issues that can influence how a State exercises its
authority and carries out its responsibilities for migration management
3
Section 1.4
Background
International society is organized into basic nation State units. It is recognized that States have the
authority to decide individually how they want to manage migration related to their own territory.
States have primary responsibility for their own citizens and they set the terms for the admission,
residence, and removal of aliens.
Individual States, however, do not have complete control because international law imposes modest
limitations on migration management. Furthermore, some areas of authority and responsibility for
migration management are open to interpretation.
Guiding Questions
1
What international conventions has your State ratified?
2
How do these agreements affect your State’s migration policy?
3
How do these agreements affect the way that your State implements its migration policy?
4
When you consider the provisions of international law given in this Section, do you find policies or implementation procedures in your State that can be viewed as controversial or subject
to challenge? If so, what are the implications?
5
Should migration policy in your State go beyond the basic requirements of international legal
6
What policies would you recommend that your State change or develop to manage admission,
obligations? If so, how far and in what directions?
residence, and expulsion of non-nationals?
4
Authority and Responsibility of States
A fundamental premise of national sovereignty is that a State has the power to determine the non-nationals
it admits to its territory, to remove non-nationals in certain circumstances, to control its borders, and to take
necessary steps to protect its security. However, this power to manage migration has to be exercised with the
full respect of the fundamental human rights and freedoms of migrants that are granted under a wide range of
international human rights instruments and customary international law.
Terms and Concepts
Alien
A person who is not a citizen (national) of a State
Customary international law
International laws that derive their authority from the constant and consistent practice of States,
rather than from formal expression in a treaty or legal text. Customary international law changes as
a result of contributions made by individual States. When a State acts from what it determines are
its legal obligations in the international community, its practice can contribute to the formation of
customary international law. This occurs when other States adopt and consistently follow the contributing State’s example.
Non-refoulement
A core principle of refugee law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. The principle
is usually considered a part of customary international law and is therefore binding on all States,
whether or not they are parties to the 1951 Convention relating to the Status of Refugees.
5
Section 1.4
Topic One
State Authority
It is an accepted maxim of international law that every sovereign nation has the power, as inherent in
sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.1
This classic judicial pronouncement describes an international system built on nation States. States
are the foundational units that exercise authority in migration matters.
This means:
•
States carry primary responsibility for securing the health, safety, security, and economic
well-being of their populations which, to a very large degree, consist of their citizens
•
States often base policy on their own interests in the migration realm as elsewhere, by
deciding how best to advance the health, safety, security, and economic well-being of their
own citizens
•
States have ongoing authority to set their own criteria for deciding who may enter or stay
and thereby determine who will be included in the population that benefits from the State’s
fulfillment of its primary human rights obligations.
States calculate how best to advance the health, safety, security, and economic well-being of their
own citizens. On the basis of these calculations, at least since the early twentieth century, most States
have tended to restrict the admission of foreigners and to require review of qualifications to enter,
both through visas issued or denied by their consular officers posted in foreign territory and through
inspection at the border.
However, it has been rare for a State to exercise the maximum of its theoretical power, by virtually
halting all migration. For well over a century, States have also frequently entered into international
agreements that limit their discretion over migration and that also provide for transnational cooperation in shaping and implementing immigration rules.
6
State Authority
Authority and Responsibility of States
Important Points
1
States can shape migration policy to fit security concerns and political objectives.
Some scholars and advocates make claims about the limits on State authority, particularly by relying
on the international law of human rights. In fact, these limits, while important, remain modest. The
regional human rights treaties that have gone the furthest (as interpreted) in imposing limits on
discretion over admission and expulsion continue to allow States to incorporate security concerns
and political constraints or objectives into migration policy.
2
States enjoy their widest scope of authority over migration in setting the standards for admis-
sion to and exclusion from their national territory.
•
International law imposes few, if any, procedural requirements on decisions regarding
admission at the border or on the issuance and refusal of visas. States typically do provide
procedural protections, however, including formal adjudicative hearings before administrative officers, particularly with regard to exclusion decisions covering persons at a port of
entry.
•
States have wide discretion in establishing grounds for deporting or expelling people who
have made an entry into national territory. As a matter of practice, however, the grounds for
expulsion are typically more limited than the grounds for barring entry.
•
International law imposes modest responsibilities on States, including the requirement to
accept the return of nationals when another State seeks to deport them.
3
Broad State authority receives increased support in difficult circumstances.
National populations, particularly in times of economic stress or security threat, tend to strongly
support the principle of broad State authority. In these circumstances, the population may make
demands for State action, and the State may make use of its broad powers of national discretion over
the entry, residence, and removal of foreigners.
7
Section 1.4
After the September 11 2001 terrorist attacks on the United States, national security has been sharply brought
into focus, increasing the concern that foreigners present threats to the security and safety of a country and its
citizens.
In resolution 1373, the UN Security Council called on States to prevent the movement of terrorists or terrorist
groups by effective border controls and by controlling how identity papers and travel documents are issued.
Migrants were suddenly regarded with more suspicion than before and asylum-seekers, refugees, and economically motivated migrants are being regarded as potential enemies.
After the 11 September 2001 events, a number of States took action to tighten immigration systems by improving identification systems (biometrics, finger printings), increased data exchange and border control, and tighter
entry control, for example, passenger pre-clearance, posting of immigration liaison officers, and posting of airline
liaison officers.2
4
Restrictions on State authority arise by way of exception.
States have been considered to have complete sovereign authority over a defined territory and population. International human rights law and other treaty obligations, both bilateral and multilateral,
have made inroads into the sweep of this sovereign authority and these will be identified later in
this Section. However, the underlying principle of State authority remains, and restrictions on State
authority arise by way of exception.
What You Need To Know About...
Human Rights Law and State Authority
International law now requires the observance by a State of a range of civil and political rights, as well
as (through norms of less precise content) basic economic, social, and cultural rights towards its citizens. Although international law was classically indifferent to how a State treated its own citizens, the
development of modern human rights law over the past half-century has significantly changed this
situation. International human rights law now dictates certain requirements for a State’s stewardship
of rights and economic interests of its nationals.
8
The obligation on States to recognize a range of civil and political rights under international law
extends to all persons within the jurisdiction of the State, citizen, or alien.
Human rights norms do not significantly affect the ongoing authority of the State to set its own criteria for deciding who may enter or stay.
What Do You Think?
Respecting human rights makes practical sense.
Providing greater individual rights and protections, in ways that coincide with the values served by
human rights doctrine, generally makes practical sense in encouraging wanted migration and by
aligning immigration systems with the ideals of a society’s legal system. States, therefore, usually
choose to go much further than the minimum required by international law. They do this, for example,
by honoring family unity in their immigration laws or by having procedures to challenge adverse
decisions.
Migration management is a dynamic exercise that balances the authority of the State with international human rights standards.
Apply What You Have Learned
1
Express the claims made in the following three points in your own words. Give
examples from your experience that either support them or that detract from
them. For each point, comment on the relevance and implications for migration
policy in your State.
•
States can shape migration policy to fit security concerns and political
objectives.
•
Broad State authority receives increased support in difficult circumstances.
•
Restrictions on State authority arise by way of exception.
9
State Authority
Authority and Responsibility of States
Section 1.4
2
Take a position and give examples from your experience that either support or
3
Do you agree with the characterization of migration management as a “dynamic
reject the claim that “Respecting human rights makes practical sense.”
exercise” suggested as a point to consider in this Topic? What would you add or
change in the diagram that portrays this exercise as a balancing activity?
4
Identify the treaties and conventions that your State has ratified. A list of relevant agreements is provided in the appendix for this Section.
10
Authority and Responsibility of States
Topic Two
Policies and practices governing admission and exclusion illustrate the wide ranging authority available to States. Aside from specific treaty obligations, there are no significant categorical restrictions
on a State’s authority to determine the grounds for admission. General international norms have the
status of guidelines only and do not restrict State authority.
The policy governing admission can vary considerably.
For example:
•
on economic grounds, many States restrict migration in order to protect a favoured position
for their own citizens within the internal labour market
•
States often require that prospective immigrants show that they are able to support themselves during their stay
•
admission at a border can be denied based on disease, past criminal convictions or activity,
earlier violations of immigration laws (including fraud), or national security or public order
concerns (including indications of possible terrorist connections)
•
•
States may set numerical ceilings on admissions or on particular categories of admission
bilateral treaties address permission to migrate and treatment of migrants between the
States covered by the treaty. These treaties—especially consular treaties, investment treaties, and friendship, commerce, and navigation treaties—have often been used to set particular procedures, rules, restrictions, or protections that apply to migrants covered by the
treaties.
Important Points
1
In practice, a State will enforce grounds for denial of a visa or of admission at a border based
on factors such as disease, past criminal convictions or activity, earlier violations of immigration
laws (including fraud), national security or public order concerns (including indications of possible
terrorist connections), and economic grounds.
2
States may decide that the interests of their citizens call for fairly generous admission policies,
11
Authority to Admit and Exclude
Authority to Admit and Exclude
Section 1.4
at least for temporary purposes. This is a trend that has accelerated with the expansion of global trade
and tourism.
3
State practice has tended to allow temporary admission for purposes of study, tourism, business
dealings, and employment.
4
Permission for permanent immigration is commonly based on a variety of economic and human-
itarian factors, including family connections (including cross-national marriages), specified employment skills or particular job offers, and humanitarian grounds, including protection for persons who
show that they are refugees.
5
Increasingly, regional treaties require transnational regulation of admission and migrant treat-
ment matters. The European Union treaty provides the most extensive provisions governing migration, but other regional treaties, such as the North American Free Trade Agreement, or the 1975
Treaty Establishing the West African Economic Community, also exemplify this trend. These treaties
focus primarily on business- or work-related grounds of admission, although the European Union
treaty coverage has been expanded over the past 45 years to other aspects of migration management,
as well.
6
International law imposes few, if any, procedural requirements on decisions regarding admission
at the border or on the issuance and refusal of visas. States typically do provide procedural protections, however, and sometimes provide formal adjudicative hearings before administrative officers,
particularly with regard to exclusion decisions covering persons at a port of entry. Decisions on visas
are less likely to be subject to formal procedures, although some States allow administrative appeal
and sometimes even judicial review for selected types of visas.
7
States ordinarily may not refuse entry to their nationals, nor may they expel or deport them.
Consistent with the basic organization of international society into nation States, States retain
primary responsibility for their own nationals.
•
The Universal Declaration of Human Rights provides that everyone has the right to leave any
country, including his own, and to return to his country. Article 12(4) of the International
Covenant on Civil and Political Rights seems to permit somewhat greater discretion to the
State where it says that “No one shall be arbitrarily deprived of the right to enter his own
country”. But clear standards as to what might make for an arbitrary deprivation have not
been settled.
•
Some States have attempted to manipulate the application of their nationality laws in
order to defeat the requirement to repatriate their nationals. This is accomplished through
12
Authority and Responsibility of States
measures that strip the individual of citizenship before return can be effected. However,
such measures have usually been condemned by the international community, sometimes
under the doctrine of “abuse of rights”.
A State has a responsibility to other States to accept return of its citizens. This norm, requiring
that a State accept return of its citizens when demanded by another State on whose territory they are
found, is of more ancient lineage than the comparable human rights norm described in point 7 above.
The responsibility to accept the return of its citizens may be applicable even if the individuals resist
return. This can occur when an individual fails to establish a valid claim based on a well-founded fear
of persecution in the country of citizenship that would trump the host State’s authority to expel.
9
Some have argued that these re-admission or non-expulsion obligations may include aliens (not
only citizens) who have been lawfully resident for a lengthy period. These arguments are either on
the basis of an asserted doctrine of “acquired rights” or “legitimate expectations”, or on the claim
that the phrase “his own country” in Article 12(4) of the International Covenant on Civil and Political
Rights covers such residents and is not limited to citizens. State practice generally does not support
such a claim.
•
The UN Human Rights Committee has rejected the latter argument, at least in the context
of an individual claimant who had not naturalized even though the State imposed no unreasonable barriers to naturalization.
10
A country of transit (as distinguished from a country where the individual had enjoyed a signifi-
cant period of lawful residence) is not obligated by general international law to accept return of
someone who passed through that territory, even when that individual may have remained there for
a fairly lengthy period. Nonetheless, in recent decades, States have increasingly negotiated bilateral
or regional re-admission treaties applicable to such transit situations.
•
Re-admission treaties are often in connection with broader treaty regimes that determine
which State is responsible for considering an asylum application. For example, the Convention determining the State responsible for examining applications for asylum lodged in one of the
Member States of the European Communities (Dublin Convention) of 1990.
•
Sometimes re-admission treaties and conventions are viewed as helping to enforce an
asserted principle that the country of first asylum should consider the asylum application.
However, no clear principle of this type (outside specific treaty arrangements) is supported
by State practice.
•
Even in the absence of a re-admission agreement, a State may take an asylum applicant’s
prior stay in a third State into account in deciding whether to grant asylum. Such asylum
decisions are ultimately discretionary.
13
Authority to Admit and Exclude
8
Section 1.4
State C is asked to provide asylum to a national of State A who demonstrates that he is a refugee at risk of
persecution in State A. State C may properly take into account that person’s stay and apparent protection in State
B, and could deny asylum on that ground.
In these circumstances, State B is under no obligation to accept return of this refugee, unless there is a specific
re-admission agreement or pledge.
Furthermore, the non-refoulement norm, as reflected in Article 33 of the Convention Relating to the Status of Refugees, would not permit State C to return the individual to State A. Consequently, he may well wind up remaining
indefinitely on the territory of C, despite the refusal of asylum by C.
Apply What You Have Learned
1
Give examples from your experience that relate to the ten important points
presented in this Topic. Which of these points receive support from your experience? Which of these points are not supported by your experience?
2
What changes have occurred in the last ten years to your State’s policy on admis-
3
Identify any regional treaties that impact on your State’s policy on admission and
4
Are there any opportunities for policy development that you would like to
sions? What caused these changes?
exclusion.
explore by applying some of the practices described in this Topic?
14
Authority and Responsibility of States
5
What, if any, procedural requirements does your State have regarding decisions
about admission at the border or on the issuance and refusal of visas? What
6
What would influence your use of discretion in considering an asylum application?
15
Authority to Admit and Exclude
changes would you recommend? Why would you recommend these changes?
Section 1.4
Topic Three
Authority to Expel
States can exercise wide discretion when establishing grounds for deporting or expelling those who
have made an entry into their national territory.
States typically will deport if the person:
•
•
entered the territory in violation of the law
failed to comply with the terms of admission (for example, working without authorization
or overstaying the permitted period)
•
has been involved in criminal activities.
States may also deport someone who:
•
•
is a threat to national security
should be expelled for foreign policy reasons.
Important Points
1
In practice, the grounds for expulsion are typically more limited than the grounds for barring entry.
For example:
•
Contracting a contagious disease while on national territory is less likely per se to furnish a
ground for deportation even though the same illness might well have blocked initial admission if the disease had developed before entry.
•
The list of criminal convictions that might bar entry is typically more expansive than the list
of later criminal acts that might result in deportation of a resident alien.
•
Human rights norms, such as those protecting family life, have found more of a foothold in
restricting expulsion than in constraining admission decisions.
2
Some States have laws that require authorities to balance the interest of individuals against the
interest of the State before deciding on expulsion. The national laws of many States require authorities to balance the interests of individuals—particularly those who have been long-time lawful residents, against the State’s interest in deporting—before decreeing expulsion. Other States observe
16
Authority and Responsibility of States
no such limitation, however, or provide for such balancing only in narrowly defined circumstances.
International law requires individualized balancing in very specific cases, for example, cases that
involve the principle of the “best interests of the child.”
Mr Teoh, a Malaysian citizen, arrived in Australia in May 1988 and was granted a temporary entry permit. In
July, he married Jean Lim, an Australian citizen. Mrs Teoh had four children at that time, and subsequently three
additional children from their marriage.
On 3 February 1989, Mr Teoh applied for a permanent entry permit. In November 1990, he was convicted of
importing and possessing heroin. He was sentenced to six years’ imprisonment. The sentencing judge accepted
Teoh was refused a permanent entry permit: his criminal record meant that he could not meet the good
character requirement. In July 1991, and again in February 1992, a delegate of the Minister ordered Mr Teoh’s
deportation.
Mr Teoh appealed the decision, ultimately to the Full Federal Court. The Federal Court found that Australia’s ratification of the United Nations Convention on the Rights of the Child (although not part of Australian law) created
a legitimate expectation in parents and children that an action by the Commonwealth would be conducted in
accordance with the principles of the Convention. Amongst other things, the Convention (Article 3) provides that
“in all actions concerning children ... the best interests of the child shall be a primary consideration.”
In this case, the good character requirement, in conformity with departmental instructions, was treated as the
primary consideration; the decision maker did not treat the interests of the children as a primary consideration.
Their Honours said: “A decision maker with an eye to the principle enshrined in the Convention would be looking
to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.”
Mr Teoh was, therefore, denied procedural fairness.3
3
Human rights norms may place substantive limits on a State’s normally expansive powers to
expel or exclude aliens in some settings. For example, several human rights instruments bar the
collective expulsion of aliens. Furthermore, as a matter of practice that predates modern human
rights instruments, most States privilege immigration by family members of citizens (especially
spouses and minor children) and often of relatives of persons with durable residence rights as well.
17
Authority to Expel
that Mrs Teoh’s addiction to heroin was a relevant factor in explaining Mr Teoh’s actions. In January 1991, Mr
Section 1.4
In the deportation setting, they have typically made allowance for the consideration of family connections and impacts before decreeing expulsion.
Ms Hadžira Sulejmanović
Ms Sulejmanović, her infant daughter Alisa, who suffers from Down’s Syndrome, and her husband Mr Pašo
Sulejmanović, were just one family among dozens expelled from Italy after first being detained in the Casilino 700
and the Tor de’ Cenci camps outside of Rome, Italy on 3 March 2000.
On 7 March 2000, a letter was sent to Italian Prime Minister Massimo D’Alema to express concern at this group
expulsion, noting that the collective expulsion of aliens is in contravention to Article 4 of Protocol 4 to the European Convention on Human Rights.
Facing particular danger is Alisa Sulejmanović, daughter of applicants Pašo and Hadžira Sulejmanović, who suffers
from Down’s Syndrome and underwent open-heart surgery just prior to the expulsion. Transportation and infrastructure in Bosnia-Herzegovina was still in the post-war redevelopment stage and chronic illnesses such as
Alisa’s, which may not have been life-threatening when adequate medical care was available, now have the
potential to be fatal.
Taking the report on the current status of the returnees into consideration, a supplemental submission was
prepared on behalf of the applicants to provide additional information to the Court on the current status of the
returnees. The Court has held that where substantial grounds exist for believing that the person concerned, if
deported, faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the
receiving state, such forced deportation violates Article 3 (prohibition of inhuman or degrading treatment) of the
European Convention on Human Rights.
After a hearing on 14 March 2002 the Court declared Sulejmanović and others v. Italy admissible.4
4
Recent years have seen rapid development of case law considering whether, or to what extent,
explicit human rights norms relating to the family now constrain admission and expulsion decisions.
The most extensive protections of this sort have developed under Article 8 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms (ECHR), which protects a person’s right
to privacy, home, and family life. Several decisions of the European Court of Human Rights have
applied this provision to forbid the expulsion of long-time alien residents (usually, but not always,
18
Authority and Responsibility of States
individuals who first took up residence as children), even though the ground of the proposed expulsion was the commission of serious crimes.
5
State practice outside Europe more readily accepts the expulsion of long-time residents on the
basis of crimes, even over objections based on family rights. The UN Human Rights Committee has
upheld such expulsions over claims based on the comparable provisions of the International Covenant
on Civil and Political Rights (ICCPR). Later trends in the Human Rights Committee, however, may
reflect a less deferential application of Covenant norms to expulsion, but the Committee’s case law
is not extensive. The ultimate test may prove to be the actual practice of States that are party to the
Covenant, and it remains far from certain that, outside Europe, State practice will yield so substantially to family protections in cases involving persons who have committed crimes.
International human rights law imposes procedural requirements on expulsion decisions, which
are generally considered to carry higher stakes than admissions. Careful limits placed on these obligations reveal the wide margin of discretion States retain even in this realm. An illustration of this is
Article 13 of the International Covenant on Civil and Political Rights (ICCPR), which provides:
“An alien lawfully in the territory ... may be expelled there from only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national
security otherwise require, be allowed to submit the reasons against his expulsion and to
have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”
•
Note that this procedural guarantee applies only to those lawfully in the territory and does
not cover clandestine entrants or those at the border applying for admission.
•
The procedural protections under Article 13, although important, are far more modest than
those that apply to criminal trials under Article 14 of the ICCPR. Article 13 requires only
a procedure established by law and some opportunity to “submit the reasons against expulsion”, with a modest requirement for review by and representation before the competent
authority.
•
Even these limited guarantees may be overridden if there are compelling reasons of national
security, a provision that may make room for ex parte in camera5 procedures in terrorist
cases.
•
It has been argued that other relevant provisions, such as the basic requirement to respect
the inherent dignity of the human person whenever someone is deprived of liberty, or the
right to an effective remedy, may call forth additional procedural protections, but any such
requirement has not been clearly developed. In any case, most nations with developed
migration management regimes in fact apply procedures that go far beyond the recognized
procedural minimums in the vast majority of cases.
19
Authority to Expel
6
Section 1.4
Apply What You Have Learned
1
What would you like to see in a policy governing admission and expulsion?
2
Does your State have criteria and procedures that determine when someone
wishing to enter the country is a threat to national security? What are they? How
effective are they?
3
Compare the grounds for expulsion with the grounds for admission in your State.
4
How does your State balance the interest of individuals against the interest of the
How are they different?
State before deciding on expulsion?
20
Authority and Responsibility of States
Topic Four
Constraints on Admission
and Expulsion
The Anti-discrimination Norm
The anti-discrimination norm6 serves primarily to place a modest burden on the State by requiring
it to provide a plausible justification for any distinctions drawn in law or practice that are used as
grounds for admission and expulsion.
•
Some scholars think the test for this norm requires reasonableness and proportionality in
judging a State’s distinctions, a standard that implies a somewhat more demanding inquiry
into the State’s case, and thereby results in broader authority for the court, international
committee, or body of scholars to assess the State’s distinctions.
Other commentators say merely that the government’s burden is to put forward “some
rational basis” for the differentiation relevant to the purpose that is sought to be achieved.
•
Domestic and international tribunals generally tend to apply highly deferential review to
distinctions drawn in law or practice that are used as grounds for admission and expulsion. This favours an interpretation of the anti-discrimination norm that only requires
“some rational basis” for the differentiation relevant to the purpose that the State seeks to
achieve.
Important Points
1
The general norm against discrimination has not been applied to impose close scrutiny in order
to evaluate the widely varied distinctions that States use as grounds for admission and expulsion.
2
Today, explicit racial distinctions would not be judged to meet the anti-discrimination norm.
3
Distinctions applied on the basis of the nationality of the migrant are quite common and are
generally accepted without quarrel. Often such distinctions reflect a State’s various treaty obligations
towards different countries.
•
Traditional historical or cultural ties may also give rise to eased rules of admission in
21
Constraints on Admission and Expulsion
•
Section 1.4
comparison with those imposed on citizens of other countries.
•
States may deploy nationality-based distinctions in response to specific foreign policy developments, such as the country-specific imposition or lifting of visa requirements, or even the
suspension of visa processing or of migration altogether.
The Non-refoulement Norm:
a special case of anti-discrimination
A highly significant limitation on expulsion derives (initially) from the non-refoulement obligation
in Article 33 of the widely accepted 1951 Convention relating to the Status of Refugees. That provision bans return or expulsion to a State where the refugee’s life or freedom would be threatened
due to discrimination against his race, religion, political opinion, nationality, or membership in a
particular social group.
•
This obligation is now generally considered part of customary international law, and it
trumps other normal grounds for expulsion for persons who meet the refugee definition set
forth in Article 1 of the Convention.
•
Exceptions are permitted when the person may reasonably be regarded as a danger to the
host State’s security or has been convicted of a particularly serious crime.
Important Points
1
Non-refoulement does not prevent expulsion to a third State (although the expelling State has
some obligation to avoid chain refoulement to the persecuting State).
2
Non-refoulement does not automatically lead to asylum, permanent residence, or other durable
status. Such status guarantees are still considered to be within the discretionary prerogative of States.
Some States, particularly developing countries, withhold such broader grants of status and look to the
international community to assist in finding other solutions even while refraining from return of the
covered individuals to the country of origin.
3
Comparable non-return obligations have since developed under other treaty regimes, both global
and regional.
•
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) bars return of a person where there are substantial grounds for believing that he
22
Authority and Responsibility of States
or she would be in danger of being subjected to torture, and many courts and commentators
hold that this obligation is now part of customary international law binding on all States,
whether or not they are parties to the CAT.
•
Article 3 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms (which bars torture or cruel, inhuman, or degrading treatment) has long been
interpreted to bar return to another country if there is a real risk of torture or inhuman
treatment there. Similar provisions in other human rights treaties are beginning to be read
as imposing similar non-return obligations. How far such a non-return obligation extends,
however, remains unclear. Some countries observe, as a matter of legal duty, only the limits
imposed by the CAT and the 1951 Refugee Convention.
•
State practice also reflects frequent national decisions to avoid expelling people (who do
not meet the 1951 Convention Refugee definition or the CAT requirements) to countries
in the midst of severe armed conflict through the use of some form of temporary protection
or temporary suspension of deportation proceedings. State practice varies, however, and
controversy persists over whether most States involved see this abstention as a matter of
Balabou Mutombo, a Zairian threatened with deportation from Switzerland, was a member of an opposition party
in Zaire where he had been arrested in 1989 and tortured. Medical certificates confirmed his account. After his
asylum application and appeal were rejected, his lawyer took the case to the Committee Against Torture (a body
set up under the Convention against Torture). The Committee examined his case and informed Switzerland that
if Balabou Mutombo were returned to Zaire, this action would constitute a violation of Article 3 of the Convention
against Torture. The Swiss Government then annulled the deportation order.7
Apply What You Have Learned
1
What is your State’s interpretation of the proper tests for anti-discrimination?
2
What non-return obligation for refugees does your State recognize?
23
Constraints on Admission and Expulsion
legal obligation or as a sound use of their discretionary powers.
Section 1.4
3
What procedures would you recommend to implement compliance with the non-
4
Should closer scrutiny using the general norm against discrimination be support-
refoulement norm?
ed in order to evaluate the widely varied distinctions that States use as grounds
for admission and expulsion? What are the issues? What policy would you
recommend?
24
Authority and Responsibility of States
Topic Five
State Authority and Citizenship
States have broad discretion to establish their own rules governing the acquisition of citizenship.
Article 1 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws
contains the following provision, which is generally considered to reflect customary international
law:
It is for each State to determine under its own laws who are its nationals. This law shall be
recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.
Other sources of law impose few restrictions on the recognition of a State’s bestowal of citizenship, so
long as there is a genuine link between the State and the individual. In a few circumstances, general
international law may say something more about acquisition of citizenship, but the norms are modest
in scope or soft in character.
More information on State authority and citizenship can be found in Section 3.7, Migration and
Citizenship.
Authority to Remove Citizenship
States also have fairly wide discretion in setting their own rules for the loss of citizenship, although
an important provision of the Universal Declaration of Human Rights (Article 15(2)) does provide that
This norm may well be considered to have become part of customary international law, but concrete
standards for assessing arbitrariness in this context have not been clearly defined. Many States
provide for loss of citizenship upon some or all of the following events:
•
•
•
•
•
voluntary renunciation (at least if the person is not thereby rendered stateless)
voluntarily acquiring citizenship in another State
assuming government office in a foreign State
serving in the military of another State
proof of fraud in the acquisition of citizenship through naturalization
25
State Authority and Citizenship
“No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”
Section 1.4
Important Points
1
States may decide whether to adopt jus soli or jus sanguinis8 (or more often, a distinctive combina-
tion) as the basis for attribution of citizenship at birth, with specific modifications and limitations as
the State sees fit.
2
Naturalization regimes (providing citizenship after birth) may be generous or restrictive, as the
State chooses.
3
A State is not required to extend citizenship, even to the second or third generation born on its
territory.
•
There is an emerging trend in State practice, however, towards cutting back on rules that
make it difficult for the second or third generation to acquire citizenship of the country of
residence, because of host States’ desires to promote the integration of long-resident alien
populations.
•
The 1999 amendments to Germany’s citizenship laws, introducing a modest element of jus
soli into a system that had been wholly based on jus sanguinis, point at future trends.
In Switzerland, the law on naturalization was revised in order to facilitate the acquisition of Swiss nationality.
Specifically, the considerations are to facilitate the naturalization of second-generation immigrants raised in Switzerland and of third-generation immigrants born in Switzerland.
4
States may choose to accept or discourage dual nationality, although a decided trend towards
acceptance has been evident over the last 30 years. An increasing number of States, including many
that had been strong opponents of dual nationality, have now come to accept the status and in many
cases actively encourage it on the part of its nationals who have lived in other countries for many
years.
5
Article 34 of the Convention relating to the Status of Refugees provides responsibilities for contract-
ing States regarding naturalization for recognized refugees lawfully settled in a country of refuge.
“The Contracting States shall as far as possible facilitate the assimilation and naturalization
26
Authority and Responsibility of States
of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.”
6
The 1961 Convention on the Reduction of Statelessness intrudes more deeply into national author-
ity over citizenship, requiring the bestowal of citizenship in a variety of circumstances if the person
would otherwise be left stateless, but only 26 States are parties to this Convention.
Apply What You Have Learned
1
Under what conditions can citizenship be granted in your State?
2
Under what conditions can citizenship be lost in your State?
3
Does your State accept or discourage dual nationality?
4
What is the naturalization regime in your State? Should it be more generous?
5
Do you think that an international legal framework should be developed to regu-
More restrictive?
State Authority and Citizenship
late citizenship issues? What aspects would you regulate?
27
Section 1.4
Concluding Remarks
The authority of States is well established in migration matters. This Section of the Manual provided
a description of current practice and the foundations for State authority. International law provides
some constraints on broad State authority. Migration policy development is an exercise in balancing
the interests of individual States with the interests of all States for orderly migration, as well as with
the rights of migrants. Economics, politics, past practice, security, and human rights principles each
contribute to the mix of factors that migration policy must assess and address in order to manage and
influence the dynamic relationship between individual States and international norms and laws.
States have opportunities to use their authority to go beyond the minimum obligations established by
international law. The “Apply what you have learned” exercises in this Section support good governance by examining the experience of States and the opportunities that are present for contemporary
migration policy development.
Appendix One
Multilateral Agreements at the International Level
This Section has identified a number of international instruments that constrain, to varying degrees,
the authority and responsibility of States in the management of migration. The following is a list of
important multilateral agreements that are relevant to the management of migration. The listing also
identifies the number of States that have ratified or subscribed to each instrument.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT), 10 December 1984, 1468 U.N.T.S. 85
(Ratified by 134 States as of November 2003)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 18
December 1979, 1249 U.N.T.S. 13
(Ratified by 174 States as of November 2003)
Convention on the Reduction of Statelessness, 30 August 1961, 989 U.N.T.S. 175 (Ratified by 27
States as of November 2003)
Convention on the Rights of the Child (CRC), 20 November 1989, 1577 U.N.T.S. 3
(Ratified by 192 States as of November 2003)
28
Authority and Responsibility of States
Convention relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137
(Ratified by 145 States as of November 2003)
•
Protocol relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267 (Ratified by
141 States as of November 2003)
Convention relating to the Status of Stateless Persons, 28 Sept. 1954, 360 U.N.T.S. 117
(Ratified by 55 States as of November 2003)
Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 12 April 1930,
179 L.N.T.S. 89
(Ratified by 20 States as of November 2003)
International Convention on the Protection of the Rights of All Migrant Workers and Their Families,
18 December 1990, G.A.Res. 45/158 (annex), 30 I.L.M. 1521 (1991)
(Ratified or acceded to by 23 States as of November 2003)
International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, 999 U.N.T.S. 171
(Ratified by 151 States as of November 2003)
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 7
March 1966, 660 U.N.T.S. 195
(Ratified by 169 States as of November 2003)
International Covenant on Economic, Social, and Cultural Rights (ICESCR), 16 December 1966, 993
U.N.T.S. 3
(Ratified by 148 States as of November 2003)
United Nations Convention Against Transnational Organized Crime, 15 December 2000, UN Doc.
A/55/383 (Annex I, p. 25), not yet in force
(Ratified by 56 States as of November 2003)
•
Protocol to Prevent, Suppress, Punish Trafficking in Persons, Especially Women and
Children, supplementing the United Nation Convention Against Transnational Organized Crime, 15 December 2000, UN Doc. A/55/383 (Annex II, p. 53), entry into force 25
December 2003 (Ratified by 45 States as of November 2003)
•
Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplementing the
United Nation Convention Against Transnational Organized Crime, 15 December 2000,
UN Doc. A/55/383 (Annex III, p. 62), entry into force 28 January 2004 (Ratified by 40 States
as of November 2003)
29
Section 1.4
Multilateral Agreements at the Regional Level
American Convention on Human Rights (ACHR), 22 November 1969, 1144 U.N.T.S. 123 (Ratified
by 25 States as of October 2003)
African Charter on Human and Peoples Rights, 26 June 1981, OAU Doc. CAB/LEG/67/3/Rev. 5
(1981), reprinted in 31 I.L.M. 58 (1982)
(Ratified by 53 States as of 1 January 2000)
Convention determining the State responsible for examining applications for asylum lodged in one of
the Member States of the European Communities (Dublin Convention), 15 June 1990, O.J.C. 254/1
(1997), reprinted in 30 I.L.M. 425 (1991)
(Ratified by all 15 EU member States by 1 January 1998)
European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 4
November 1950, 213 U.N.T.S. 221, ETS No. 5
(Ratified by 44 States as of November 2003)
•
Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, securing certain rights and freedoms other than those already included in the
Convention and in the first Protocol thereto, 16 September 1963, 1469 U.N.T.S. 263, ETS
No. 46 (Ratified by 37 States as of November 2003)
•
Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, 22 November 1984, 1525 U.N.T.S. 195, ETS No. 117, (Ratified by 35 States as of
November 2003)
North American Free Trade Agreement Between the Government of Canada, the Government of the
United Mexican States, and the Government of the United States (NAFTA), 8-17 December 1992, H.
Doc. 103-159, vol. 1 (pp. 3-449), 103d Cong., 1st Sess., 4 November 1993, reprinted in 32 I.L.M. 289
(1993)
Treaty Establishing the European Economic Community (consolidated text incorporating changes
made through Treaty of Nice), O.J. (C 325) 33 (2002)
(15 full member States as of November 2003)
Treaty Establishing the West African Economic Community, 28 May 1975, 1010 U.N.T.S. 17, reprinted in 14 I.L.M. 1200
(15 States Parties as of November 2003)
30
Authority and Responsibility of States
Endnotes
1
Nishimura Ekiu v. United States, 142 U.S. 651, 658 (1892); compare Musgrove v. Chun Teeong
Toy, 1891 AC 272.
2
Source: IOM
3
“Bills Digest No. 10 1997-98 Administrative Decisions (Effect of International Instruments)
Bill 1997”, Parliament of Australia, Parliamentary Library, Available at:
http://www.aph.gov.au/library/pubs/bd/1997-98/98bd010.htm
4
“Forced Exit: ERRC Legal Action in Italian Expulsion Case”, European Roma Rights Center
(ERRC), Available at:
http://www.errc.org
5
Ex parte: done by one party only; an ex parte communication is where one party to a dispute
communicates to a judge without the other parties’ presence. In camera means in the judge’s
private chambers.
6
The norm appears prominently in the United Nations Charter’s human rights provisions and
is reinforced and expanded in the International Convention on the Elimination of all Forms of
Racial Discrimination, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights, as well as in a host of other universal and regional human rights treaties.
7
“Refugees: Human Rights have no borders”, Amnesty International, Available at:
http://www.amnesty.org
8
Under the jus soli, a State accords citizenship based on birth in its territory. Under the jus sangui-
nis, a State accords citizenship based on birth to or descent from one of its citizens, wherever the
birth occurs.
31