Table Of Content

This volume addresses one of the most vital questions of modern law and justice: How can we reconcile the universal and transcendent value of human rights with the more local national communities that bring so much meaning and security to our lives? Tetsu Sakurai and Mauro Zamboni have gathered the most thoughtful and learned scholars from Asia, Europe, and America to consider these important questions from slightly different perspectives, yielding a subtle and valuable consensus on many points, while indicating interesting paths for future reflection. This study will be of great value to anyone who seeks global justice in our necessarily diverse and multipolar world. Mortimer Sellers, Regents Professor of the University System of Maryland and Former President of the International Association for Philosophy of Law and Social Philosophy (IVR) Migration and integration are very topical global challenges that raise a multitude of pressing legal and ethical questions. The anthology brings together ten essays by leading international scholars who explore the tension between human rights and national sovereignty from different perspectives. The combination of theoretical analysis and case studies makes reading extremely worthwhile for anyone interested in global migration issues. Frank Dietrich, Professor of Political Philosophy and Ethics, Heinrich Heine University Düsseldorf Can Human Rights and National Sovereignty Coexist? Looking at two of the key paradigms of the post-Cold War era—national sovereignty, and human rights—this book examines the possibilities for their reconciliation from a global perspective. The real or imagined fear of a flood of immigrants has caused and fuelled the surge of an amalgam of populist political forces, anti-immigrant move- ments, and exclusionist nationalism in many developed countries. In the last decade, we have witnessed the emergence of two phenomena in the political and legal spheres. On the one hand, there are liberal globalists asking for respect and the protection of the basic human rights of migrants and asylum seekers and arguing for their civic and social integration into host societies. On the other hand, there are growing calls for a tougher stance on immigration, and powerful populist politicians and governments have emerged in many developed countries. How can the idea of universal human rights sur- vive exclusionist nationalism that uses a populist, unscrupulous approach to its advantage? The contributors to this book explore the meaning of, and possible solutions to, this dilemma using a wide range of approaches and seek appropriate ways of dealing with these normative predicaments shared by many developed societies. Scholars and students of human rights, migration, nationalism and multi- culturalism will find this a very valuable resource. Tetsu Sakurai is Professor of Contemporary Jurisprudence in the Graduate School of Intercultural Studies at Kobe University, Japan. Mauro Zamboni is Professor in Legal Theory at the Faculty of Law, Stockholm University, Sweden. Global Perspectives on Immigration and Multiculturalisation Migration Governance in Asia A Multi-level Analysis Edited by Kazunari Sakai and Noemi Lanna Can Human Rights and National Sovereignty Coexist? Edited by Tetsu Sakurai and Mauro Zamboni Can Human Rights and National Sovereignty Coexist? Edited by Tetsu Sakurai and Mauro Zamboni First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 selection and editorial matter, Tetsu Sakurai and Mauro Zamboni; individual chapters, the contributors The right of Tetsu Sakurai and Mauro Zamboni to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-0-367-60965-8 (hbk) ISBN: 978-0-367-60966-5 (pbk) ISBN: 978-1-003-10271-7 (ebk) DOI: 10.4324/9781003102717 Typeset in Galliard by SPi Technologies India Pvt Ltd (Straive) Contents List of contributors ix Acknowledgements x Introduction 1 TETSU SAKURAI PART I Tension between national sovereignty and rights of immigrants 15 1 Human rights to asylum and non-refoulement: rights of expulsi and suppliants in the system of natural and volitional law formulated by Hugo Grotius 17 RAINER KEIL 2 Self-determination and immigration control: a critique 54 KEVIN IP 3 International borders, immigration, and nondomination 73 JOSHUA J. KASSNER PART II State legislation and the statuses of immigrants 95 4 Law-making to face the migration crisis: developing legislative policy (analysing the Swedish case) 97 MAURO ZAMBONI viii Contents 5 Can the law create discrimination? Migration, territorial sovereignty, and the search for equality 133 VALERIA MARZOCCO 6 The gap between constitutional rights and human rights: the status of ‘foreigners’ in constitutional law and international human rights law 149 AKIKO EJIMA PART III Human rights and border control 169 7 From formalist circumvention to substantive fulfilment: taking human and fundamental rights seriously in European migration policy 171 FREDERIK VON HARBOU 8 Does international human rights protection trigger a Copernican revolution for immigration law? 186 STEFAN SCHLEGEL 9 Migration, neighbourliness, and belonging 216 STEVEN SCALET 10 Reflective inclusiveness as a bridge between human rights and nationalistic attachment 244 TETSU SAKURAI Conclusion 269 MAURO ZAMBONI Index 274 Contributors Akiko Ejima, Professor at School of Law, Meiji University Frederik von Harbou, Professor at the University of Applied Sciences Jena Kevin Ip, Assistant Professor at Government and International Studies, Hong Kong Baptist University Joshua J. Kassner, Professor of Philosophy in the Yale Gordon College of Arts and Sciences, University of Baltimore Rainer Keil, Lecturer at Faculty of Law, University of Heidelberg Valeria Marzocco, Professor at Law Department, University of Naples Federico II Tetsu Sakurai, Professor at School of Intercultural Studies, Kobe University Steven Scalet, Professor of Philosophy in the Yale Gordon College of Arts and Sciences, University of Baltimore Stefan Schlegel, Postdoc at Faculty of Law, University of Bern Mauro Zamboni, Professor at Faculty of Law, Stockholm University