In recent times, many states have chosen to remain blind to immigrant’s rights, denying them constitutional protection, with the excuse of exercising their sovereign rights.
This paper analyses the issue of immigrant’s constitutional protection from a compared perspective between Chile and the US. It delves into the differences between both Constitutions, the recourses granted by them, and the jurisprudence of both countries’ Supreme Courts (including Chile’s Constitutional Tribunal). It argues that, even though there are substantial differences between them, there are common grounds that make some immigrants invisible to constitutional protection. In both countries, excessive deference is given to the Government in immigration issues.
Finally, we argue that the exercise of sovereignty, under the rule of law, is only legitimate if it respects fundamental and human rights of all persons. Immigration law and policies should be subject to strict scrutiny from Courts.
Classical international law is inadequate in providing solutions for the challenges posed by an increasingly globalised world. This is because global governance does not fit easily into the structures of classical, inter-state, consent-based models of international law. Indeed, the sources of classical international law are unable to respond to most regulatory challenges deriving from global public goods (GPG). Since the protection of human rights may be considered the most prominent GPG, this research will focus on the need for structured cooperation mechanisms involving a legal regime for international migration. It will examine the governance potential of the UN Global Compact on Migration (GCM) – a soft law instrument –, which supposes its possibility to prescribe actionable commitments going beyond soft law cooperation framework. This example indicates that the line between the domestic and the international is increasingly blurred and that a new public law might be emerging.
The paper interrogates the legal construction of citizenship in the Indian republic between 1950 and 1955 when claims to citizenship was primarily regulated, contested, negotiated and accommodated within the constitutional framework of ‘domicile’ and a deadline bound ‘migration’ enframed in the Indian Constitution. While British India’s ‘Partition’ and the consequent state formation determined the issue of ‘legal belonging’ which was articulated in the language of the constitution, the judicial determination of citizenship became complex and courts consequently had to determine the many meanings of ‘migration’ and ‘domicile’ to comprehend the complexities of legal belonging and an assortment of methods from probing the evidentiary value of official documents to prodding the litigant’s ‘intention’ to stay, were used to adjudicate and establish legal belonging.
While an increasing amount of states are closing their borders, fighting to defend their sovereign territory, massive amounts of people migrate abroad. Currently, the concept of ‘sovereignty’, which has traditionally included the power of states to control and close their borders, has been called into question when confronted with other principles of international law. Particularly, this happens when sovereignty clashes with human rights that could allegedly be violated if certain migrants are rejected in a state’s frontiers.
When a migrant can be qualified as a refugee, states usually open their frontiers with ease. This makes sense because many states are parties to the 1951 Refugee Convention, or are nonetheless bound by a customary norm that they did not oppose to. However, when a migrant does not meet the criteria to be a refugee, but could be classified as a ‘climate refugee’, the human rights of the latter do conflict with states’ sovereignty to close their frontiers.
How can we build unity within ethnically heterogeneous states? Scholars debate the effects of consociational powersharing institutions, such as federalism and proportional electoral systems. We focus on a different realm of policy: citizenship laws. The question is whether countries with more inclusive citizenship laws are better able to garner the loyalty of immigrants and other indigenous minorities than are restrictive ones. We combine data about citizenship laws in national constitutions with attitudinal data from cross-national surveys, leveraging both cross-sectional and over-time variation. Our cross-sectional analysis suggests that minority respondents—and especially more recent immigrant groups—in countries with jus soli citizenship are more likely to express national pride than are minority respondents in countries with more restrictive citizenship laws. A case study of the Baltic States also suggests the impact of citizenship laws.