Immigration and the Human Rights Discourse: The Universality of Human Rights and the Relevance of States and of Numbers

Abstract

The main thesis of this Article is that the tendency to sweepingly use the human rights discourse in immigration contexts may be misguided. Moreover, the expansion of the human rights discourse beyond its natural and critical scope may have negative results and encourage states to act in ways that may harm important interests of immigrants. The unsuitability of applying human rights discourse to many of the core issues of immigration policy derives from three main reasons: First, is the immanent tension between the moral claims that rights are universal and apply to all individuals, and the fact that actual protection of human rights is the primary responsibility of states. Second, is the related distinction between the basic recognition of a human right and the processes of identifying the nature and scope of the duties such recognition involves. Third, are the institutional implications of choosing between the human rights discourse and discussion of policy questions. Issues determined by rights that have already been regulated can and should ordinarily be decided by independent courts; while issues of policy, especially ones that involve extensive enforcement and administrative structures, should be debated, resolved, and implemented by political players. While there are important aspects of immigration that do belong to core human rights in the strongest sense, most typical immigration issues are not, at this stage, matters of universal human rights.