Liberal states are internally, rather than not externally, impaired in controlling unwanted immigration. This is self-limited sovereignty of the liberal states.
BY HEIGRUJAM PREMKUMAR
Immigrants and the question of their admittance to the host country have been widely debated and discussed from various standpoints by different scholars for the past many years and are still continuing. The articles selected in this critical review also form a part of this ongoing academic as well as policy debate on how immigrants are to be seen and in what manner the policy makers should act vis-a-vis immigrants.
For the purpose of this critical review the arrangement is such that Christian Joppke’s article is first looked into and is followed by Seyla Benhabib’s. This arrangement is due to two reasons: first, chronologically Joppke’s article (1998) came before Benhabib’s (2002), and second, the absence or ineffectiveness of discussion in Joppke’s article about the ‘international human rights regime’ and for which he regretted is filled-up and well-discussed in Benhabib’s article.
Joppke’s article explores why liberal states accept unwanted immigration, discussing the cases of illegal immigration in the United States and family immigration in Europe.
Founding his arguments from where Gary Freeman had started, Joppke rejects the views of scholars such as Saskia Sassen that state sovereignty is undermined by globalization and that global constraints force states to accept unwanted immigration. He finds that it is only the liberal states which face the problem of unwanted immigration while the oil-producing Middle East states are very efficient in keeping out unwanted immigration. Such a situation, Joppke argues, cannot be explained by the space-indifferent logic of globalization. If the constraints of globalization were the reason why liberal states accepted unwanted immigration, then it should be the same in the case Middle East states also. But this does not happen.
He further argues that economic globalization or economic factors, or the international human rights regime are not the reasons why liberal states accept unwanted immigration. For instance, international human rights regime lacks enforcement powers and it cannot exactly force states to accept unwanted immigrants. And, for those who did not sign these international conventions, they are literally free from such obligations.
For Joppke, the capacity of states to control immigration has in no way diminished but increased. It is only due to domestic reasons, self-limited sovereignty that liberal states accept unwanted immigrants. Joppke agrees with Gary Freeman that a domestic political process deeply influenced by client politics limits the liberal states to act to stop unwanted immigration. However, Joppke suggests two modifications to Freeman’s model.
The first is that of legal process. Joppke cites examples in the US and Europe where the legal rather than the political process was more crucial in compelling states accept unwanted immigration.
The second is the existence of important variations in the processing of unwanted immigration. This variation is found not only between the United States and Western Europe but also within West European states.
In Joppke’s case study of illegal immigration in the United States, he explains the incapacity of the US to stop illegal immigration and points out that the most important reason for this is due to the logic of client politics. He illustrates this through examining the failure of the 1986 Immigration Reform and Control Act (IRCA) and failure of the anti-immigration movements of the 1990s. He argues that IRCA failed to stop illegal immigration due to Hispanic lobbying that was later joined by civil rights groups. Similarly, the anti-immigration movements of the 1990s and the follow up proposals by the US Congress failed due to expansive client politics. Thus, in the US illegal immigration is alive and evolving.
Contrary to the United States, what we see in Europe is closing down of (family) immigration since late 1960s and early 1970s.
European states’ acceptance of family immigration is more due to their recognition of moral and legal rights of those initially admitted. Europeans states have a notion of primary and secondary immigration. The primary immigrants were those who came to these states before restrictions were imposed and the secondary immigrants were the relatives of primary immigrants who came to these states after the restrictions were imposed. The secondary immigrants were accepted, though unwanted, in recognition of the family rights of primary immigrants.
Joppke here studies the case of family immigration and related policies of Germany and Britain. Germany being a guest-worker regime used to welcome and actively recruit immigrants into the country and thus is morally bound not to dispose them at will. Joppke finds the working of not only legal constraints but also independent working of moral obligations in Germany’s measures towards reunification of families and dealing with the issue of family immigration in the country. Germany is found to be much generous to family immigrants and giving priority to individual rights. The active involvement of judiciary is found in Germany’s case.
Opposite to Germany, Joppke finds Britain being very firm in dealing with family immigrants. This may be due to the nature of postcolonial immigration and the absence of a written constitution protecting individual rights. Postcolonial immigration has always been an unwanted immigration from the beginning. And, the overarching power of the executive and the lack of judicial review along with the anti-immigrant attitude of the majority population made it easy for Britain to put in place a strongly restrictive policy towards immigration. The infamous husbands rule, the marriage tests etc. were some examples. Moreover, there was no active client politics with skilful lobbying in Britain. However, Britain had to make certain concessions (though always followed by restrictive policies again) because of the historical particularity of the family immigrants.
One factor among global factors that was insufficient in Joppke’s discussion of the political and legal process of unwanted immigration is the ‘international human rights regime.’ Joppke even admitted that its absence might be the flaw of his analysis and yet he wanted this to be demonstrated.
In Seyla Benhabib, the current trend towards the ‘deterritorialization of politics’, the emergence of international human rights norms, and the frequent conflicts between such norms and national sovereignty claims are explicitly discussed. Following the Kantian tradition of cosmopolitan right, she also argues for the membership within bounded communities and ‘democratic attachments.
According to Benhabib, the invocation of international human rights norms in immigration, refugee and asylum disputes challenge the territorially delimited nation states in their claims to control borders as well as their prerogative to define the boundaries of the national community. At the same, however, she also notes the lack of penalty to states for refusal to admit these groups and therefore the ineffectiveness in terms of ensuring compliance.
The primary focus of Seyla Benhabib in her article is on political incorporation through immigration. She points out the tension between the commitments of liberal democracies to universal human rights and the sovereign self-determination claims.
The contemporary theories of justice with the exception of Michael Walzer, according to Benhabib, hardly consider the aspect of political membership, that is, the principles of incorporating aliens, strangers, immigrants and newcomers into existing polities. John Rawls talked about closed borders and pointed against entry into and exit from the political community. This is something illiberal in liberalism. The priority of rights as universal was not fully recognized in such understanding of political membership.
Seyla Benhabib finds herself differing from scholars of moral cosmopolitanism, deterritorialized and post-national citizenship, and the decline of citizenship in that these approaches avoid the paradox of democratic legitimacy.
The democratic sovereign accepts that universal human rights precede and antedate the will of the sovereign. ‘We, the people’ signifies that this people established itself as a democratic body by acting in the name of the universal. The tension between universal human rights claims and the particularistic cultural and national identities is constitutive of democratic legitimacy. Modern democracies act in the name of universal rights which are then circumscribed within a particular civic community. This is a paradox of democratic legitimacy.
Democracies have pre-commitments to certain universal rights. At the same time, democracies require borders since the will of the democratic sovereign can only extend over the territory that is under its jurisdiction. Then, the democratic sovereign is defined in territorial and civic terms. This leads to the differentiation of full members of the sovereign body, and those who fall under its protection but do not enjoy full membership rights.
Another addition is the aliens and foreigners whose status is governed by mutual treaties among sovereign bodies.
Taking the example of European Union, Benhabib argues that there is an emerging trend of ‘disaggregated citizenship’ and differential rights regimes for different groups. Increasingly entitlement to rights is based on residency and not on citizenship status. The entitlement to social rights replacing the exercise of democratic citizenship legitimises the increasing anti-immigrant policies. Immigrants, refugees and asylees are seen as social burden whose social entitlements outweigh their contributions. They are unwanted.
Benhabib argues that while in T. H. Marshal’s framework there is a teleological structure of rights, that is, political rights and civil rights preceded the social rights, the current citizenship and immigration practices in most liberal democracies are that social rights are granted to both citizens as well as legal aliens and residents, getting political rights and privileges of membership remains blocked or is made extremely difficult. The danger in this situation is permanent alienage and this is most evident in the case of European Union particularly in case of third country nationals.
In European Union, the rights of EU citizens are sharply differentiated from that of third country nationals, within a patchwork of local, national and supranational rights regimes. The mobility and employment opportunities of third country legal residents are restricted. There is thus the development of the two-tier status of membership.
Benhabib argues that the trends towards the disaggregation of citizenship are an inescapable aspect of contemporary globalization. Disaggregated citizenship permits individuals to develop and sustain multiple allegiances and networks across nation-state boundaries. Such trends further cosmopolitanism. However, such networks much be made conducive to democratic citizenship.
Benhabib sees the emergence of cosmopolitan norms but at the same time admits that cosmopolitanism is not yet fully attained. According to her, the worldwide movement of peoples should be decriminalised and each person, irrespective of their political citizenship status, should be treated in accordance with the dignity of universal personality. For her, no human is illegal and cosmopolitanism should be strengthened and people should adopt policies and laws consonant with the cosmopolitan norms of universal hospitality.
Christian Joppke’s main argument is that liberal states are internally, rather than not externally, impaired in controlling unwanted immigration. This is self-limited sovereignty of the liberal states.
Further, he points out that one aspect of self-limited sovereignty is a political process under the sway of “client politics”. The logic of client politics explains why the United States accepts illegal immigration.
The case of family immigration in Europe suggests two further aspects of self-limited sovereignty: legal-constitutional constraints on the executive, and moral obligations toward historically particular immigrant groups. However, these legal and moral constraints are unevenly distributed across Europe, partially reflecting the different logics of guest worker regime (Germany) and postcolonial immigration regime (Britain).
However, in Joppke’s article we find the complete rejection of the impact of the increasingly deterritorialized politics and the disaggregated citizenship. He also rejects the impact of international human rights norms on the actions of the states. This is a misleading conclusion on the part of Joppke when we come to study Seyla Benhabib.
The whole argument of Seyla Benhabib emphasises the impact of the international human rights norms on democratic sovereign states. She clearly points out that the democratic sovereign states are in some way or the other impacted upon by the universal nature of human rights norms.
Benhabib sees little in the domestic sphere of the democratic sovereign but more on the strengthening of cosmopolitanism.
However, in Benhabib also the total ignorance of the importance of territorial belonging poses a problem because territorial belonging is essential to the formation of political identities.
Both Christian Joppke and Seyla Benhabib offer an in-depth analysis and a close examination of an issue widely debated and affects the lives of millions of immigrants. The self-limited sovereignty notion of state in accepting unwanted immigrants offered by Joppke enables us to see how liberal states in the US and Europe cope with the challenges of unwanted immigration. On the other hand, Seyla Benhabib’s analysis of ensuring free movement and acceptance of immigrants, refugees and asylees as political members wherever they wish to get admitted offers a new insight into the understanding of issues of aliens or foreigners and solutions needed.
*Christian Joppke, “Why Liberal States Accept Unwanted Immigration,” World Politics, Vol. 50. No. 2 (Jan., 1998), pp. 266-293.
*Seyla Benhabib, “Transformations of Citizenship: The Case of Contemporary Europe,” Government and Opposition, Vol. 37, Issue 4 (Oct., 2002), pp. 439-465.