Mohsin Hadid, Pakistani by birth, educated in America and living in the United Kingdom. This scheme is the essence of a lot of individuals in the world, who desires to migrate. Like a lot of people Mohsin thinks that everyone shall have the right to settle in any country of one’s choice. Approximately 244 million people live outside of their country of origin. Each individual moves for a particular reason. Such reason can vary from looking for an opportunity, a search of protection, wanting to start fresh somewhere else. There is no denying that some time, migration can have a positive impact and can be a strength for some migrants, keeping mind that migrants are individuals who decide to leave or flee their habitual residence to live in new places. For some others, it has such a negative impact, a clear lack of Human Rights creating a Human Right crisis at borders. This makes us question, if so many people move across borders, then is there such thing as a Human Right to move freely, to migrate? Although, if such a right existed, in what way should it be constructed and what could represent a limit to it? Thus, the State could be tempted to restrict migration, especially for some specific type of migrants on grounds of security. Why states and the citizens might have a legitimate reason in controlling migration, a certain sovereignty of the state of doing so?
What would a question of a right to migrate imply?
Before detailing and explaining what a Human Right to migrate would imply, it is essential to understand what constitutes a Human Right. Human rights are fundamentally specific and based on an internationality compared to domestic laws and rights. Human rights are moral principles that regularly protected as legal rights in domestic and international law. They are understood as inalienable, fundamental rights, which are inherent to being a human. They are applicable anywhere, which is where the sense of universality is comprehended. This leads them being egalitarian, as any human possesses the same human rights. Hence the fact that a Human Right to migrate should be Universal.
A Human Right to migrate would mean that any individual on the basis of being a human being should be allowed legally to cross any desired borders, no matter the country. It also underlines that there would be a right to remain within the borders. Having such a right would lead states to agree upon a consistent and fair right of all.
In comprehending the right, the Declaration of human Rights comes as the perfect example of such. Thus we can see that two Articles highlight the element of freedom of movement, which is essentially the base of a Human Right to migrate.
Article 13 describes the liberty that all possess in moving and residing within each states ‘borders. This enables each and everyone to leave and come back to any Country. As I have stated above, wars and suffering bring people to move which is also highlighted in the Article 14. Such article explains that everyone has the right to seek refuge if persecuted.
It is also greatly understood through Oberman Kieran, when he states “Immigration restrictions curtail freedom”. A human right to migrate is a full representation of freedom. It can actually be compared to the Schengen area. This area is made out of 26 European states that have rendered moot, passports and all other types of border control at their mutual borders. A Human Right to migrate would bring this concept of Schengen area to a far more complex concept. It would not only be around the European Union but would include all other Countries.
How a human right to migrate can be constructed and understood on the basis of Universality?
To be able to construct a Human Right to migrate one must wonder: would migration have the same kind of importance in a human life as the already established Human Rights?
Depending on the way that right is understood, it seems unlikely for all. There are multiple aspects to migration. Migration is the simple fact of moving to another place. However, some move for the sole purpose that the economic, environment culture or even legal system appears greater than in the country of origin. Would that show an essential and vital reason to prove a need for a human right? How is this important to the human being to move borders? For some moving borders is a part of their life or even culture, such as the nomadic. Thus, it would make them demand such a human right to be able to act upon their culture and needs. However, this is a perfect example that as it is purely based on culture, it would not be enough a justification for a universal human right.
For some others, the right to move is motivated by the opportunities existing in one country more than another one. For example, jobs unable to the country of origin and able to another. Mexicans moving to the US to find a better job or even find a job
One of the reasons, however, that could appear greater to some is the act of moving to another country for a far more rich country, which often has more access to food and medicine. Furthermore, in a very contemporary issue that the world faces, a lot of people have to migrate for their safety, Syrian refugees etc. This shows an essential interest in making sure the human life is safe and guarded in a territory that can provide those needs. Would that represent the basis for a Human Right to migrate as it emerges as a fundamental right to a decent life? If we take the Maslow Hierarchy of needs , which is the concept of basic needs for Human being, it is undeniable and accepted that moving for medical care, access to food and safety represent elements of basic needs. Hence being able to move to another country for those specified need expresses a vital right that an individual deserves to hold. Then, it is comprehended that the only way to resolve these issues of primary needs is to recognise an additional right, the human right to migrate, which will allow the already recognised genuine human rights to food and so on to be fulfilled.
However, critics exist, as there are multiple other ways for primary rights to be fulfilled. Other countries can help and bring aid such as adequate food and medical care within the country. It would represent a short-term help and lead to an economic growth in the long run. Thus to establish such right of migration, we would need to look at alternatives, where one would compare different types of solutions and the one which involves the least interference with the other rights for the ones bearing the consequences and obligations.
Keeping in mind that an argument in favour of a Human Right to migrate would be mainly a tool, there is a need to prove that having such right would be essential to Human interest, and that any other already existing rights could not fulfil such interest. Oberman shows that what makes such a right essential lies in the idea that the State in which an individual lives in might not have “free to access the full range of existing life options”. It would mean that not everything is attainable, accessible in each and every state. One example could be the practice of a religion that is not adherent to the place an individual lives in.
This is where the question of the sovereignty of the state comes to mind. Indeed, after everything explained above, it appears that the only thing able to make the human right to migrate moot is the state itself. In addition, although a Human Right is to be accepted for all by all states, it leads to think that there would be an infringement of the state’s right in deciding who enters on the territory.
What are the issues that advocate for a Human Right to migrate encounters?
The Universality that undeniably makes Human Rights particular is highly challenged by the creation of passport and Identification cards. Passports represent the first element of identification of the nationality that one can hold, especially in travels. Some passports are naturally preventing individuals to enter certain countries such as the Israel passport. About 16 countries in the world do not accept the Israeli passport. Some also reject the fact that a foreigner went to Israel for holidays, if a stamp is found on the passport. Moreover, the current politics in place do no depict a positive attitude towards a Human Right to migrate such as President Donald Trump’s plans to build a wall between the border of Mexico and Texas. In addition to this plan, he also banned immigration from several countries, which are Muslim. This shows that having the entire community agreeing on a universal right to migrate does not appear possible. Allowing some to migrate and banning some others are also contrary to Article 1 and 2 of the Universal Declaration of Human Rights. The first article states that:
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
Article 2 is the fundamental right of no discrimination based on any factors, which makes an individual him/herself: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth …”
In addition to such issue is the financial cost having a Human Right to migrate could represent to Countries. It would imply that in order to defend and procure this human right, the state would need to participate financially to this right. As one can very well comprehend, the State is often the last one to get involved in spending money, especially when not sure this can become lucrative.
Hence, after explaining what could be the issues of having a Human Right to migrate, there is no denying that it is necessary to highlight the State’s part in establishing or not such right.
The importance of the question, whether there is such a Human Right to migrate needs no underlining, however, it may need to explain that in today’s society, all states proclaim their own right to control the borders, deciding on who should be admitted and who should not. It does appear to be legitimate, as if one compared it to the state being a home and the citizens and the government being the owner of the house, one could not argue against their will to know and decide who enters in the house. Moreover, in many cases the right of sovereignty is exercised through border control and harsh measures waiting to punish the migrants if he were not to satisfy the legal requirements for entry. If there were to be a Human Right to migrate, then all these measures would be unacceptable.
Before understanding sovereignty in relation to the Human Right to migrate, one wonder, what is the purpose of the State first and foremost?
Before the creation of States, individuals owned their personal autonomy. This led to each having the power to decide for themselves and control their actions. Locke used the theory of the “state of nature” to explain how humans came from being a separate sovereign entity to create what will become a government. In nature, before owning one’s power to decide meant that each individual had to protect one’s property. A person used to be one’s own police, judge, and lawyer. In order to reduce such hardship, people decided to regroup and form a state, a government. This is where the idea of democracy came from. With the word deriving from the Greek, Demos (people) and Kratia (power). Governments would them only derive their powers derive their legitimacy from the sole duty to protect citizen’s property interests.
There is no question that if men did not in a way abandon their freedom, the issue of establishing a Human Right to migrate would be futile, and non-existent. Once this is explained, then how does sovereignty has an impact on the right to migrate and why is this a reasonable right that it holds.
The duty to protect citizens could lead to the impossibility of establishing a Human Right to migrate.
It was explained above, that some of the grounds that can represent an issue faced by the Human Right to migrate, is the autonomy of the state in judging and deciding the individual who enters within its territory.
Contrary to Article 13 of the Declaration of Human Rights, Article 12 of the International Covenant on Civil and Political Rights of 1966 , adds to the freedom of movement, the issues of national security, public order, and freedom of others. . Indeed, by allowing each individual to move freely and live freely where one desired, it becomes complex to control the public order and to assure safety to the people living within the border of a state. Moreover, even though Michael Dummett explained that there is a genuine obligation in allowing people to migrate freely, he states that there are limits to the right to migrate, as States might want to restrict for the sole reason there is a divergence of culture within one territory, that can lead to conflicts, thus, it would lead to some countries being denser than others. The case of Uner v the Netherland highlights the effort from the State to protect national security. Indeed, the case is based on an appellant born in Turkey and residing in the United Kingdom for the past 16 years, who has committed serious crimes such as manslaughter and assaults. The decision to deport him back was challenged by the Article 8 of the European Chart on Human Rights, which protects family life and private life. However, it was ruled that he shall be deported as the State decided Security Interest was more important that the Family life and the appellant’s interest. For multiple reasons, some countries that appear richer would be chosen over others suffering from climate change, wars. Such desired countries would end up being out of capacity to receive a large amount of people. Joseph Heath argues that citizens would rather preserve their culture instead of receiving people from outside their country. This culture is a way for them to form certain common values, “If too many immigrants from other cultures arrive, they could disrupt our culture; thus, Heath believes, we have a right to restrict immigration.” By seeking to control how the culture is shifting and evolving, it requires that there is a control on the external influence. This is in a manner to explain that there is a right of citizens to restrict migration, refuting the idea that a right of people to move freely and live wherever one desired should exist.
A Human Right to migrate but a legal and legitimate right of the State to decide based on sovereignty.
Firstly the notion of sovereignty shall be explained in order to study the relation with sovereignty and human right to migrate. Sovereignty is the extensive right that a governing body has, which cannot be interfered by an outside body, for example another State.
The notion “sovereignty” leads to domestic, independent and internationally recognized power over one’s territory, “the autonomy of domestic authority structures” what makes the notion interesting is the fact that only sovereign states have the ability to negotiate on behalf of their people, whether it is by signing treaties and making agreements between them and another State, regarding the territory, resources and one’s self-interests. Moreover, states possess “monopoly over the legitimate crossing of borders” and the “sovereign right to designate who are citizens…” . Hence, it is the state’s “duty to control both security and migration” The control of borders is understood as being the quintessential exercise of State’s sovereignty. Controlling borders has multiple purposes: it is a way of controlling the population or maintaining the internal security. Sovereignty in a way represents the concept of a private club. A private club is legally allowed to exclude whom it does not want as a member, even if the exclusion is not based on a solid reason. It represents its simple right. Although it can be criticised on the basis of morals and unfairness, it is still a right held by the State not to accept some. A nation can at its discretion exclude unwanted members.
In conclusion, most people who migrate are ordinary migrants who desire to emancipate themselves from their country of origin, for various reasons, going from emotional reason, to economic migrant and migrants fleeing persecutions. In this essay, I have been working on the question whether or not there was a Human Right to migrate, which would lead to border restrictions being morally problematic. To this question, I would have to answer negatively. A universality of the right is incapable of being reached as states own their sovereignty and rights to decide who enters within their borders. The recent vote of the Brexit, in the United Kingdom demonstrates how concerns about migration can lead to calls for a certain re-enforcement of sovereignty. Understandably, States have a responsibility to protect one’s citizens. There is a feeling that having people move constantly to the desired country is something hard to control, especially in times, where such thing as terrorism can occur at anytime. In addition, the public also influenced by the media is constantly shown that migrants can represent a danger to their safety. This does not promote the creation of a Human Right to migrate that would enable any individual to move and encounter differences, which in our society is still feared. It cannot be disregarded that a serious amount of lives are affected in a serious and long-term manner by migration restrictions. Were these restrictions lifted, people would have multiple opportunities opening their doors for them to drastically alter their lives, for what we can only hope is for the best. Trying to impose a Human Right to migrate is met with heavy complications and criticism, as one would then be asked to put a right above another one.
As one migrant myself, aiming to create a life out of my birth country, I understand and experience the criticism that one can encounter. There is a misconception that migrants are only criminals wishing to take on jobs instead of locals. It shall not be forgotten that there are multiple advantages to migration. Low-skilled migrants can contribute to the Economy, as they often take jobs, locals think of beneath them, which in turns enable natives to take up more remunerative employment. Moreover, when people return to their country, they do so with a richer baggage of skills and experiences, which will make a great contribution in their home countries. This means migration can ultimately be good for developing countries and improving situations, which made them leave in the first place. This brings further the debate on the advantages that migration can have on development and the betterment of the community. More than wondering if there is a Human Right to migrate, one should wonder why there is a need for such right?