POL207Y1 Chapter Notes -Orrin Hatch, Liberal Democracy, Gerald Kaufman

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Published on 6 Mar 2013
Why Liberal States Accept Unwanted Immigration
Christian Joppke *
One of the more popular watchwords of our time is that the nation-state is in
decline--"too big" to solve regional problems, "too small" to solve global
problems, as the topographical metaphor goes. A related argument is often
made regarding an increasing incapacity of states to control immigration.
"Strangers at the gate" was the alarmist cry heard in the wake of 1989 and
all that. The Economist (March 15, 1991) showed a ramshackle border
guardhouse being overrun by a giant bus bursting with all sorts of foreign-
looking (and strangely cheerful) characters. Such hyperbole has since
disappeared, partially as a result of tightened procedures for asylum across
Western states. But there still seems to be a gap between a restrictionist
control rhetoric and an expansionist immigration reality. An influential
comparative volume on immigration control argues: "[T]he gap between
the goals of national immigration policy . . . and the actual results of
policies in this area (policy outcomes) is growing wider in all major
industrialized democracies." 1 Why do the developed states of the North
Atlantic region accept more immigrants than their generally restrictionist
rhetoric and policies intend?
The phenomenon of unwanted immigration reflects the gap between
restrictionist policy goals and expansionist outcomes. Unwanted
immigration is not actively solicited by states, as in the legal quota
immigration of the classic settler nations. Rather, it is accepted passively by
states, either for humanitarian reasons and in recognition of individual
rights, as in asylum-seeking and family reunification of labor migrants, or
because of the states' sheer incapacity to keep migrants out, as in illegal
immigration. The gap hypothesis can thus be reformulated as the question,
Why do liberal states accept unwanted immigration? 2 [End Page 266]
That states accept unwanted immigration contradicts one of their core
prerogatives: the sovereignty over the admission and expulsion of aliens. As
Hannah Arendt wrote with an eye to its totalitarian aberrations,
"Sovereignty is nowhere more absolute than in matters of emigration,
naturalization, nationality, and expulsion." 3 Does the acceptance of
unwanted immigration indicate a decline of sovereignty? A quick "yes," as
in David Jacobson's Rights across Borders, is premised on a simplistic and
static notion of sovereignty, thus denying its historical variability and
chronic imperfection. 4
To answer the question fully, two things should be considered. First, it is
important to distinguish between two separate aspects of sovereignty, formal
rule-making authority and the empirical capacity to implement rules. The
former belongs to international relations theory, in which sovereignty is the
defining characteristic of individual states as the units of the international
state system; 5 the latter falls within the domain of political and historical
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sociology, which has preferred the notions of state strength, capacity, or
autonomy to investigate the historically varying embodiments of the modern
state. 6 Gary Freeman has demonstrated that in both aspects there is little
evidence for a decline of sovereignty regarding immigration control: 7 the
decision to accept or reject aliens has not been relegated to actors other than
the state, and the infrastructural capacity of modern states has not decreased,
but increased, over time. Second, whether seen as judicial authority or
empirical capacity, sovereignty has rarely been as absolute as conveyed by
Arendt's characterization. Internationally, the exigencies of state
interdependence have always put the brakes on erratic expulsion or
nonadmittance practices because hostility against an alien might be [End
Page 267] interpreted as hostility against her state. In addition, international
law prohibits both expulsion or nonadmittance on grounds of race and
the refoulement of the victims of political persecution in other states. Not
only states, but also individuals, are legal subjects under international law--a
novelty of the postwar era--and states are increasingly obliged to respect an
emergent "law of migrants." 8 Domestically, Western states qua
constitutional states are bound by the rule of law, which in important
respects protects the rights of persons and not just of citizens.9
Various authors have argued that global constraints force states to accept
unwanted immigration. Saskia Sassen has identified two such external
constraints on state sovereignty: economic globalization and the rise of an
international human rights regime. 10 The penetration of peripheral countries
by multinational corporations has created the push of an uprooted and
mobile labor force seeking entry into the core countries of the world system.
In addition, the secondary labor market in the receiving countries provides a
powerful pull for immigrants. An emergent international human rights
regime protects migrants, independent of their nationality, limiting the
discretion of states toward aliens and devaluing national citizenship.
Echoing the work of Jacobson, Sassen argues that the basis of state
legitimacy has undergone a shift "from an exclusive emphasis on the
sovereignty of the people and right to self-determination . . . to rights of
individuals regardless of nationality." 11 Taken together, economic and
political globalization "reduce[s] the autonomy of the state in immigration
policy making," 12 despite the state's desperate attempts to renationalize this
policy area under the sign of populist restrictionism.
The diagnosis of globally diminished sovereignty indicates that the West has
partially created what it seeks to contain--international migration. But it
does not answer the question as to why Western states accept unwanted
immigrants. First, the space-indifferent logic of globalization cannot explain
why some states, such as the immigrant-receiving states of the oil-producing
Middle East, are very efficient at [End Page 268] keeping out, or sending
back, unwanted immigrants. 13 Only liberal states are plagued by the
problem of unwanted immigration. Second, globalists operate with a
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hyperbolic notion of strong sovereignty that never was. In terms of
economic transactions, the world of the late nineteenth century was no less
global than the world one hundred years later. 14 If the Bonn Republic
allowed its guest workers to stay, while Wilhelmine Germany practiced
resolute rotation and mass expulsions, a state weakened by economic
globalization cannot be the explanation. The state always had to vindicate
itself within and against an inherently globalizing capitalism. Third, and
related to this, the very reference to economic factors is insufficient to
explain why states accept immigrants, wanted or unwanted. Economic
globalization explains the mobilization of potential immigrants in the
sending societies, as well as the interest of domestic employers in acquiring
them, but not their actual acceptance by the receiving states. Unless one
subscribes to the questionable view that the state is always a tool of
capitalism, the task would be to identify the domestic processes by which,
say, expansionist employer interests cancel out the restrictionist interests of
the public in specific times and places. But then sovereignty would turn out
to be internally, not externally, diminished. Fourth, the international human
rights regime is not so strong as to make states fear and tremble. Jack
Donnelly characterized it as a "relatively strong promotional regime," which
rests on widely accepted norms and values, but lacks implementation and
enforcement powers. 15 Devoid of hard legal powers, the international
human rights regime consists of the soft moral power of discourse. 16 This is
better than nothing. But globalists have been content with listing formal
treaty and convention titles, avoiding the "detailed process-tracing" by
which their soft power may become domestically effective. 17 Perhaps there
would be little process to trace. For instance, the recent tightening of asylum
law and policy across Western states demonstrates that these states have
been extraordinarily inventive in circumventing the single strongest norm of
the international human rights regime, the non-refoulement
obligation. 18 [End Page 269]
In the following, I propose an alternative explanation. The capacity of states
to control immigration has not diminished but increased--as every person
landing at Schipohl or Sidney airports without a valid entry visa would
painfully notice. But for domestic reasons, liberal states are kept from
putting this capacity to use. Not globally limited, but self-limited
sovereignty explains why states accept unwanted immigrants.
Gary Freeman identified the political process in liberal democracies as one
major element of self-limited sovereignty. 19 In contrast to the globalist
diagnosis of vindictive yet ineffective restrictionism in Western states,
Freeman starts with an opposing observation that the politics of immigration
in liberal democracies is, in fact, "broadly expansionist and inclusive," 20 for
which he gives two reasons. First, the benefits of immigration (such as
cheap labor or reunited families) are concentrated, while its costs (such as
increased social expenses or overpopulation) are diffused. That poses a
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