There is no right to im­mi­gra­tion

Business World - - Opinion - JEMY GAT­DULA je­my­gat­­my­gat­dula. face­­dula Twit­ter @je­my­gat­dula

En­try into State borders is not for in­ter­na­tional law to say but of in­di­vid­ual na­tional laws.

If to mi­grate means leav­ing one’s coun­try, then one is en­ti­tled to do so. Our own Con­sti­tu­tion pro­vides that the right to choose one’s abode or to travel can­not be im­paired ex­cept by court or­der or by law in the in­ter­est of na­tional se­cu­rity, pub­lic safety, or pub­lic health, re­spec­tively.

How­ever, if to mi­grate means be­ing able to de­mand en­try and then re­side in an­other coun­try, then no such right ex­ists. En­try into State borders is not for in­ter­na­tional law to say but of in­di­vid­ual na­tional laws.

For the Philip­pines, for­eign­ers can en­ter the coun­try sub­ject to le­gal re­quire­ments and even then their rights are lim­ited. To get the full rights of a cit­i­zen, Philip­pine laws re­quire the for­eigner ap­pli­cant to re­side in the coun­try for at least 10 years, is at least 21 years old, have a busi­ness or trade, can speak and write in English or Filipino, and pos­sess a mod­icum of civics knowl­edge.

Be­fore con­tin­u­ing, a note as to ter­mi­nol­ogy:

Mi­grants – are those who vol­un­tar­ily leave their coun­try for bet­ter work or liv­ing.

Refugees — are peo­ple who in­vol­un­tar­ily left their coun­try due to dan­gers brought about by armed con­flict or po­lit­i­cal or re­li­gious per­se­cu­tion.

Asy­lum seeker — is one who claims to be a refugee but whose sta­tus as such is yet to be ver­i­fied by the proper au­thor­i­ties.

Of course, one main dif­fer­ence be­tween mi­grants and refugees is that the lat­ter gen­er­ally can­not re­turn safely to his or her coun­try of ori­gin.

The Con­ven­tion Re­lat­ing to the Sta­tus of Refugees (oth­er­wise known as the 1951 Refugee Con­ven­tion, which the Philip­pines ac­ceded to — along with the Pro­to­col — in 1981), pro­vides that peo­ple who com­mit­ted a crime against peace, a war crime, or a crime against hu­man­ity, or has com­mit­ted a se­ri­ous non­po­lit­i­cal crime out­side the coun­try of refuge prior to his ad­mis­sion to that coun­try are not con­sid­ered as refugees.

Is there a right to claim asy­lum? Bri­tan­nica puts it this way: “It is the right of a state to grant asy­lum to an in­di­vid­ual, but it is not the right of an in­di­vid­ual to be granted asy­lum by a state. This per­spec­tive is re­flected in the Uni­ver­sal Dec­la­ra­tion of Hu­man Rights (UDHR), which, though rec­og­niz­ing (ar­ti­cle 14) the right ‘to seek and to en­joy in other coun­tries asy­lum from per­se­cu­tion,’ does not ex­plic­itly pro­vide a right of asy­lum.”

“The orig­i­nal draft of that ar­ti­cle, which re­ferred to the in­di­vid­ual’s right ‘to seek and to be granted asy­lum from per­se­cu­tion,’ would have af­forded more pro­tec­tion to asy­lum seek­ers. Sim­i­larly rec­og­niz­ing that ‘the grant of asy­lum may place un­duly heavy bur­dens on cer­tain coun­tries,’ the Con­ven­tion Re­lat­ing to the Sta­tus of Refugees, which was adopted by the United Na­tions (UN) Con­fer­ence of Plenipo­ten­tiaries on the Sta­tus of Refugees and State­less Per­sons in 1951, did not cre­ate a right of asy­lum for those seek­ing it, and the im­pres­sive ar­ray of rights it enu­mer­ates per­tains only to those refugees ‘law­fully in’ or ‘law­fully stay­ing in’ the shel­ter­ing state.”

“Sub­se­quent un­suc­cess­ful ef­forts to ar­tic­u­late an in­di­vid­ual’s right of asy­lum in­cluded: (1) the UN Gen­eral As­sem­bly Dec­la­ra­tion on Ter­ri­to­rial Asy­lum (1967), which con­tained sub­stan­tive ex­cep­tions to its non-re­foule­ment (non-re­turn) pro­vi­sion (per­tain­ing to na­tional se­cu­rity and to the safe­guard­ing of its na­tional pop­u­la­tion), and (2) a pro­posed Con­ven­tion on Ter­ri­to­rial Asy­lum, which never ma­te­ri­al­ized.”

Now this is im­por­tant: in­ter­na­tional law re­quires that asy­lum seek­ers claim asy­lum in the first coun­try they en­ter upon leav­ing their own coun­try. If they en­ter such sec­ond coun­try and then not stay but move on to an­other coun­try (e.g., leav­ing Guatemala to en­ter Mex­ico and then trav­el­ing to­wards the US) then they are no longer con­sid­ered asy­lum seek­ers but mi­grants. And as men­tioned above, there is no right to mi­gra­tion, in the sense that no one can de­mand en­try into an­other coun­try.

Es­sen­tially it’s a mat­ter of re­spect­ing sovereignty.

For those who re­tain the sta­tus of asy­lum seek­ers, In­ter­na­tional Pol­icy Di­gest’s Bruce New­some (“Im­mi­gra­tion is a na­tional choice not an in­ter­na­tional law,” Fe­bru­ary 2018) points out that since they are not im­mi­grants un­der in­ter­na­tional law, then “they have no ‘right to re­main’ un­der in­ter­na­tional law. The orig­i­nal sys­tem aims for them to re­ceive pro­tec­tion in a neigh­bour­ing coun­try un­til they can safely re­turn home.”

Those are the facts. And yet in to­day’s po­lit­i­cally cor­rect, in­clu­sive mind­set, “ex­clu­siv­ity” has be­come a bad word, akin to “sovereignty.”

But as The Fed­er­al­ist’s Mark Ear­ley ar­gues, “ex­clu­siv­ity is nec­es­sary for mean­ing, iden­tity, and ac­count­abil­ity.”

Thus, “why would a na­tion need to be based, as least in part, on a prin­ci­ple of ex­clu­siv­ity? It is be­cause na­tions, not un­like fam­i­lies, need to have some sense of iden­tity, even pur­pose. When a group of peo­ple is de­fined as ev­ery­one and any­one, that ac­tu­ally means that it is no one. If ev­ery­one comes and goes as he pleases, there is a void of iden­tity, col­lec­tive be­long­ing, com­mit­ment, re­spon­si­bil­ity, and ac­count­abil­ity. Ci­ti­zen­ship is a com­mit­ment.”

JEMY GAT­DULA is a se­nior fel­low of the Philip­pine Coun­cil for For­eign Re­la­tions and a Philip­pine Ju­di­cial Academy law lec­turer for con­sti­tu­tional phi­los­o­phy and ju­rispru­dence.

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