The Bits of a New Immigration Reality: A Bad Fit with Current Policy
Published on: Jul 28, 2006

One version of such a denationalized citizenship can be seen in the portable rights given to top level professionals through the major free trade agreements as part of the globalization of trade and investment in services. These are rights inscribed in WTO, NAFTA and dozens of other trade agreements shaped by the new realities launched in the 1990s. There is a mini-immigration policy in each of the major chapters in these treaties (chapters on a broad range of services, notably, finance, business services, telecommunications, particular types of engineering, and so on). Professionals in each of the specific sectors are given the right to reside in any signatory country for at least three years and enjoy various rights and protections.

While this type of development is rarely a focus in the migration literature, these professionals are a class of “migrant workers” fully endowed with rights.  This fact is obscured by their placement in the treaties under specific economic sectors and descriptions that avoid the language of migration.   These are rights that originate in international agreements and require signatory states to fulfil them. Their fulfilment entails a partial denationalizing of the national state’s power to grant rights.3

A far more complex and advanced instance of denationalized portable rights is emerging in the European Union. It might be interesting to provide some detail because it may well signal the beginning of a process that we see elements of in the US. At the heart of this process is the shift of rights to individuals as individuals rather than as citizens of a specific country. Immigrants are incorporated into various national and EU-level systems of rights as a result of EU law.  The question of “immigrant integration” shifts away from an emphasis on the “foreignness” of immigrants and what to do about it (such as requirements for learning the language and the culture of the host country), and begins to move towards the work of mixing EU level law/policy (like the European Court of Human Rights and the Social Charter of the Council of Europe) with the decisions of national judiciaries.4 One possible outcome is that integration (including the necessity to learn the language of the country of residence) shifts from being the condition for acquiring rights to a matter (responsibility) for a rights-bearing immigrant.

The filtering of supranational norms into national law can take many forms. The fact that national systems are critical for the implementation of non-national types of rights (whether those inscribed in free trade agreements or in the human rights regime) is not necessarily incompatible with the growing weight of international norms in national courts and in national law. While this does not amount to post-nationalism or transnationalism, the filtering of non-national norms into national law does involve a partial denationalizing of at least some components of national law.5 It all happens within the state apparatus and often remains coded in the language of the national.

Positing matters as an either/or (as in either national or global) is far less valid today than it was even 10 years ago. The last decade has seen significant changes, not only in the EU but also in a country like the US, one of the most closed and “nationalist” in the world. Even the US Supreme Court has in the last few years acknowledged that it needs to consider international and foreign law—two very different types of law—in its interpretations. Specifically, when it comes to human rights norms, the US has seen sharp growth in the use of these norms in national courts, and it has seen the federalizing of these norms through rather informal processes that make these norms part of customary practice, eventually enabling their federalization—that is, their becoming national law.6

There are other bits in the new immigration reality beyond those described above.7 But for now let me emphasize the need to examine the tension between, on the one hand, these emergent processes capable of partly denationalizing borders and national institutional spaces, and, on the other,  the renationalizing of political discourse about immigration in much of the developed world. We cannot assume that this renationalizing precludes the development of new bits and pieces in the larger familiar immigration reality, and in the character of the national state apparatus itself.

The State Itself has Changed

There is more movement towards a novel approach in handling immigration than the statements and speeches of national politicians in the US and Europe would make you think. While the state continues to play the most important role in immigration policy making and implementation, the state itself has been transformed by the growth of a global economic system and other transnational processes, such as the institutional development of the human rights regime, and EU institutions in the case of the EU.

Three particular changes in the positioning of national states could have a potentially significant impact on the role of the state in immigration policy making and implementation.

One is the relocation of various components of state authority to supranational organizations, including the institutions of the European Union, the newly formed World Trade Organization, or the newly instituted International Criminal Court with its potentially universal jurisdictions. In the specific case of migration there is also the renewed role of the International Organization for Migration (IOM) in managing migration and refugees flows, and to some extent the Organisation for Economic Co-operation and Development (OECD).

Strictly speaking we should include a whole series of other actors as well. One instance is the financial and banking sector that handles immigrant remittances.  This sector is not an insignificant actor if we consider that worldwide immigrant remittances reached $230 billion in 2005.8 Further, to mention something typically overlooked, there is the role of the banking and financial sector in the larger migration web. The Inter-American Development Bank (IADB) estimates that in 2003, immigrant remittances generated $2 billion in handling fees for the financial and banking sector on the $35 billion sent back home by Hispanics in the US.9