Protection of migrants' rights and state sovereignty.

Author:Thompson, Laura
 
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Paradoxical as it seems, protecting migrants' rights may be the best way to enhance state sovereignty in a globalized world. The protection of fundamental human rights and freedoms should not depend on where one is in the world. However, it is the state's responsibility to uphold human rights through its laws and enforcement.

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Migrants are vulnerable to human rights violations because they are not citizens of receiving states and, due to their status, often live in precarious situations. Women migrants have to deal with additional challenges as they face human rights violations based on their migrant status as well as based on their sex. Whether migrants enter states "with authorization or they are undocumented, migrants will generally find their rights diminished in comparison with the citizens of their country of residence." (1) While human rights are inalienable and should not be granted on the basis of citizenship, as part of the notion of state sovereignty, states possess extensive authority to protect their borders and determine their own laws. For example, states have the power to determine the admission of non-nationals into their country, detention of migrants and removal or expulsion of non-nationals. (2) However, although states have the power to manage migration flows into, through and from their territory, they are obligated by international law to do so in such a way that upholds the rights of individuals within their territory and under their jurisdiction.

There is a fear that protecting human rights and placing the individual at the forefront of migration issues undermines state sovereignty or that putting migration governance firmly within the existing international legal framework may, in some way, be detrimental to state sovereignty. It is, however, important to underline that existing international law does not impose upon states how to govern their migration flows nor does it dictate how to formulate migration policies. In fact, the existing international legal framework actually creates a sustainable basis for having long-term migration governance with respect for the individual, as well as recognizing the states' competence to govern access and stay of non-nationals (with the notable exception of non-refoulement (3) cases).

It needs to be more widely understood that state sovereignty is not undermined when states develop migration management laws and practices that protect the rights of both regular and irregular migrants within their territory. In fact, the reverse is the case as illustrated in the examples below.

Migration management laws that protect the human rights of migrants can effectively work to enhance state sovereignty by protecting national security and public order. For instance...

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