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Immigration


The right to immigrate is not recognized in international law. At most, the international conventions on refugees (such as the UN Convention relating to the Status of Refugees) grant to some, political asylum seekers for example, the right not to be deported to a particular country where they may suffer persecution. The extent to which rights to immigrate are recognized in any nation’s domestic law is less clear. Some countries, notably Israel with its openness to any Jewish person born anywhere, create rights for a broad definition of ‘their own people’. Thus West Germany allowed entry to virtually anyone who could claim prior German national identity after the Second World War, and Ireland has very generous and extensive rights to an Irish passport for anyone with a clear Irish national heritage. The Central and Eastern European (CEE) former communist societies also have to accept fairly easy re-entry to people with a rather distant claim to belonging. This is not only to cope with those who fled the communist regimes, but even more because of the widespread forced movements of people during and after the Nazi period. However, this region also created one of the major waves of would-be immigrants to Western Europe, both among those who wished to better their socio-economic conditions, and also those arguably discriminated against in their traditional home areas, such as the Roma, who have claimed persecution through much of the CEE zone. To some extent it could be claimed that these instances, however, are not strictly exceptions to an absence of rights to immigrate but rather a special definition of pre-existing citizenship.


As immigration has grown to be a perceived serious problem for richer nations in the last few decades, previously sympathetic host countries have revised their policies, and most now have very tight restrictions on immigration. In most cases, unless there is some prior right to at least a form of citizenship within recent family history, there are only two criteria which qualify a person for entrance and residence in a country. The first, and most common, is as the spouse of someone with uncontested citizenship, although some countries treat even this as a privilege that may not necessarily be granted, rather than a strict right. The second is where a would-be immigrant has a job to go to and where the employer can pass very stringent tests of the necessity of employing the applicant rather than someone already a citizen. Where human rights problems arise is either in assessing the fairness of the machinery for granting right of residence to the comparative few who may have a claim, or, increasingly vital, in controlling the treatment of illegal immigrants. In practice, entry to many countries which do not encourage immigration is usually very easy. Even an island nation like the United Kingdom is readily accessible under the guise of tourism, and Western European countries and the USA, with long and undefendable borders, are easily entered. The treatment of an illegal entrant if later discovered is a particularly sensitive human rights issue. As a noncitizen, and indeed as someone who has, de jure, broken the law by being in the country at all, it is tempting to say that an illegal immigrant has no rights at all. After all, if the most basic of political rights, to be a citizen, is denied, as it must be, any rights remaining must adhere to someone solely as a human being; that is, they are of the most basic survival nature, concerned with the minimum of human dignity we owe to anyone. It is not clear that any Western liberal democracy achieves even this standard with most illegal immigrants. Certain proposals by both Conservative and Labour British governments at the end of the 20th and beginning of the 21st centuries have suggested that some central liberal democratic standards had been abandoned when it comes to foreigners seeking to get into the country. Never before in Western history, for example, has a government proposed taking children away from their families to encourage those denied a right of abode to leave the country; yet the Labour government, in 2004, proposed just this. The British courts have tried valiantly to restrict some of the more illiberal plans, but at the risk of encouraging the government to cut down the courts’ supervisory powers over public policy in very broad ways.


Imputation


Imputation is an interpretative technique often used in constitutional adjudication, though it is not always so labelled by the judges who use it. Imputation is used where a constitution is silent on some question, either through vagueness or, for example, because the constitution contains no explicit bill of rights and a human-rights issue arises. The judge ‘imputes’ the answer to the question from the structural features of the constitution itself, or as a logically necessary consequence of what is stated. It was very frequently used, and highly developed as a technique, by the first generation of judges on the Australian High Court to work out details of the power balance between the federal government and the states. Where, as was common, the Australian Constitution did not adequately delineate which federal powers could be used in areas where the states also wished to act, the answer was said to follow from the necessary imputation of a working federal system. In this way much that had happened in the early days of the US Constitution was replicated in Australia, and indeed the writers of the Australian Constitution had intentionally chosen the system in the hope that the US Supreme Court would act as a methodological precedent. In the USA the question of whether the federal government could tax a state government, a question not directly addressed in the Constitution, was answered in the negative by imputation, on the grounds that to allow such taxation would weaken state independence; the famous doctrine was enunciated that ‘the power to tax is the power to destroy’. Such use depends largely on a structural interpretation of the constitution. A mid-20th century US case, for example, loosened the residence rules for voting for members of the US Armed Forces on the grounds that it was a structural necessity of the system to have a highly mobile military which could post its troops rapidly to different parts of the country, and yet it would be incompatible with their rights as citizens were they to be deprived of their vote in order to facilitate that mobility. Although the use of imputation was officially abandoned by the Australian High Court in the 1920s, it was revived, if controversially, in the last decade of the 20th century, specifically for human rights issues because of the absence of a bill of rights. The classic civil right of freedom of the press was imputed by the Court in 1992, when it struck down a federal act regulating political advertising during election campaigns (see also freedom of speech) on the basis that, as the Constitution clearly set up a democratic system based on competitive party elections, complete freedom of the press could be imputed as a logically necessary condition. A very similar argument was made in 1993 in the United Kingdom by the House of Lords when it held that a local authority could not be libelled, because freedom of press comment was necessary. Where an overt statement of human rights exists, such a methodological technique is much less useful.


In camera


Trials held in camera allow no access to the press or public. Only very rarely can this method be used for criminal trials, and then only where state security is at risk. It is generally considered that secret trials are an affront to the right to a fair trial, even though all the other protections, such as the right to appeal, and the various procedural rights about legitimate evidence, the right to silence and the right to counsel, still apply to the defendant. However, given the increasing concern for privacy, and the difficulties of ensuring a fair trial under intense media speculation, there is growing hesitancy over the real advantages of public trials. This may change as Western governments seek to expedite criminal processes for those charged with terrorism, and suggestions for such in camera trials were made by the British Secretary of State for the Home Department in 2004. (These were not the least illiberal of his proposals, which included abolition of juries and security vetting of defence counsel in such trials.) The problem is that it is precisely in such politically charged circumstances as trial of suspected terrorists that public scrutiny is probably most intensely needed.


Inalienable rights


Political theorists have often talked about rights as being inalienable. The American Declaration of Independence refers to life, liberty and the pursuit of happiness as rights which are inalienable. Thomas Hobbes, in Leviathan (1651), thought that the right of self-defence was inalienable, and there is a strong tradition throughout liberal political theory that the core right of personal freedom is inalienable. To alienate a right is to give it up, to divest oneself of the entitlement to require some action or forbearance on the part of another. It is unclear whether the adjective ‘inalienable’ actually adds anything at all to the noun ‘right’, because the conditions in which it makes sense to see basic ‘human’ or ‘civil’ rights as alienable is obscure. Some statutory rights can clearly be alienated; a statute may provide citizens with the right to some degree of employment security, and an employer may offer a short-term contract, one of the terms of which is that anyone signing it will not press his rights against dismissal when the contract expires. Some political rights are clearly alienated when a person takes a post in a civil or military service which has, attached to it, the obligation not to stand for election, or not to publish anything in the newspapers without clearing it with the department. Both the latter examples are intentionally ambiguous: it is not at all clear that a court would interpret employment law as actually depriving the short-term contract holder of employment rights were he to disown the fact that he had tried to sign them away; a constitutional court could well hold that the civil servant could not, in fact, be required to give up his rights to political involvement.


There is a certain logic in declaring such rights alienable, given a sufficiently precise context, but it is questionable whether a basic right, say the right to freedom of speech, can be alienated. If an individual were unable to complain against the censorship of his writings, then this loss of rights would have to be perpetual; a right, to be effectively alienated, must be beyond recall, or else all that has happened is that someone has privately decided not to protest about the government trampling on his rights, which is quite different. Rights are corollaries of duties. If several of us give up our right to religious freedom, does that entitle the government to force us to attend a church? A properly alienated right would involve the proper assumption of countervailing power, yet private decisions cannot legitimate a power the state ought not to have, and one thing we mean when we say the citizen has a right to do something is that the government has a duty not to prevent that action. The actual purpose of the ‘inalienable’ language is to make a much broader political statement about what forms of government can be legitimate. To say that the rights to life, liberty and the pursuit of happiness are inalienable, means that only governments dedicated to these ends are legitimate, and that whatever the appearance, no body of citizens can ever be seen as consenting to be governed against these interests. The entire language of rights in this context comes from the long-abandoned social-contract style of argument in political theory, where people are conceived of as originally living in a state of anarchy; because of the inconvenience of such a state they set up a government by contract, agreeing to transfer certain powers they had in the anarchic state to a central authority. Inalienable rights are ones they could not give up, because to do so would subvert the very purpose of setting up the government. There has been a rebirth of interest in social-contract thinking in recent decades, particularly relevant to rights discussion in the work of authors like Robert Nozick.


Incorporation


Incorporation is the process by which one legal code is taken into another and made a fully functioning part of it. It takes place where a code has a jurisdiction which does not include the jurisdiction of the system into which it is going to be incorporated, and cannot therefore be used by litigants or courts unless formally incorporated. The main recent example has been the status of the European Convention on Human Rights which, though signed by the United Kingdom as by the other members of the Council of Europe, was not incorporated into English domestic law, as it had been by the other signatories. This was changed by the passing of the Human Rights Act (1998), thus removing the situation whereby although the British government was, ultimately, bound to abide by the Convention, this could only be enforced as a last resort by taking the government to the European Court of Human Rights. The Convention could not be cited in a British court, and citizens therefore lacked day-to-day legal recourse against human-rights violations in ordinary first level courts, unlike, say, a Dutch citizen who could seek protection from all tiers of his own court system. The situation in Ireland remains as it was in the UK until 1998. The most notable historical example of incorporation of a human rights code is the process by which the Fourteenth Amendment to the US Constitution incorporated what had previously been civil liberty standards applicable only to the federal government into the legal systems of the separate states. The reason some countries, like the UK, have a problem that can only be solved by explicit incorporation is that, unlike the majority of national jurisdictions, they retain the view that international law never applies to individuals, but only to states. (See also Incorporation of the Fourteenth Amendment.)


Incorporation of the Fourteenth Amendment


The US Bill of Rights (see Bill of Rights (USA)), the first Ten Amendments to the US Constitution, was originally intended to apply only to the Federal Government, because states were deemed entitled to make their own provision for matters like religious freedom, where practices in the original colonies had varied widely. One consequence of this was that discriminatory patterns, above all the legal protection of slavery, were able to flourish in parts of the Union when they were abhorred elsewhere. After the Civil War the North felt that it had to enforce minimum standards to protect the former slaves, now freed by the Thirteenth Amendment of 1865, from the inevitable vindictiveness of the whites in the South, and that this could not be done unless the federal courts could apply to state legislation the standards that it had developed from the Bill of Rights. Consequently the Fourteenth Amendment was passed in 1868, and introduced two pertinent measures. Firstly, it defined everyone born or naturalized in the USA as citizens of the USA and of their state of residence; slaves, of course, had not previously counted as citizens, and merely abolishing slavery did not, of itself, grant them this status. Secondly, the Amendment provided that no state could pass a law that would ‘abridge the privileges or immunities’ of a federal citizen, and, in the famous due process and equal protection clauses, incorporated the developing federal jurisprudence of civil liberties and human rights into the state law. Now no state government could do anything that the federal courts would not allow the federal government to do, effectively standardizing human rights across the USA.


What this meant in detail took decades to work out, because the vital clause, the due process clause, is too cryptic to be a code in itself. In a whole series of cases from the late 19th century until the 1960s the US Supreme Court held due process to have more and more content. The test, developed by the prominent Supreme Court Justice Benjamin Cardozo, came to be that due process incorporated all those standards which were essential to ‘any scheme of ordered liberty’. An example is the right to counsel in a criminal trial. Article 6 of the Bill of Rights provides that the accused in a criminal prosecution shall have, inter alia, ‘the assistance of counsel for his defence’. However, the Fourteenth Amendment does not say, in so many words, that the Sixth Amendment now applies to the states, only that the states must abide by due process of law, raising the question of whether protections like the right to counsel are part of the very meaning of due process, or just a specific Sixth-Amendment right that still applies only against the federal government. At first the Supreme Court was prepared to insist only that the states should provide counsel for those too poor to afford them in capital cases, and it was not until the landmark case of Gideon v. Wainright in 1963 that Cardozo’s test was held to imply that no one should face any sort of criminal trial without legal counsel. Each of the various due process rights had to be brought into application piecemeal, and the entire process came to be known as the incorporation process. The incorporation thesis was never easily accepted in a context where the right of each state to develop its institutions along its own lines was at the heart of the very doctrine of federalism, but Gideon is often regarded as the last battle, and it is now rare for a state to try to argue that it should be held to different standards than the federal government itself.


Incorporation thesis


The incorporation thesis refers to an argument of great importance in US rights jurisprudence. The original US Bill of Rights (see Bill of Rights (USA)) was demanded by several of the separate states as security against the new federal government invading the individual rights of their citizens. So, for example, the First Amendment prohibition against established churches was written into the Bill of Rights in a context where some states did have established churches which they wished to protect against any federally backed rival, while others already prohibited, or simply lacked, such establishment and wished to preserve the religious freedom of their citizens. In a pluralist society of separate states both positions were compatible with restrictions on the new central government. However, after the Civil War the Fourteenth Amendment, passed to ensure that slavery was eradicated in fact as well as legally, guaranteed to all US citizens both due process of law and equal protection of the laws. This seemed to many to imply that some, at least, of the civil rights guarantees in the Bill of Rights must now apply against the several states, if the citizens of states with different traditions were in fact to have equal protection, and if due process, which must have some standardized core meaning, was to be everyone’s right. The history of the Supreme Court’s development of civil rights jurisprudence is in large part the history of this ‘incorporation’, as more and more of the first Ten Amendments were held to be incorporated by the Fourteenth Amendment into the overall constitutional limitations on the actions of the states. The process of incorporation took nearly a century, with the last details, largely to do with criminal civil liberties, not being considered as fully covered by the due process clause until the 1960s.


Informational self-determination


This concept, expressed in these terms or very similar ones, is a relatively new idea emanating mainly from continental Europe, especially from the German Constitutional Court, which nevertheless has resonance for all liberal democracies and relates to human rights legislation in common law countries. Essentially it means the right of the individual to control, or have some say in, what information is made public about him, or what and how information about him is stored and accessed by the state. In Germany there have long been concerns that the state, though it may have to collect masses of information about each citizen, in different capacities, ought not to make the totality of information it holds on any particular person available to all and any state agency, regardless of their policy needs or the purposes for which different parts of the information were collected. A similar line of concern arose early in the jurisprudence of the Hungarian Constitutional Court, leading to a decision, in 1991, relating to the use of PINs (Personal Identification Numbers), forbidding the state authorities to group all data on an individual under one single identifier, and thus making it impossible to have too great a bureaucratic control of information on every citizen. While it is relatively easy to see how legal cultures such as the German and Hungarian, coming out of totalitarian pasts, might have such anxieties, the concern is not limited to such countries. In 2004 the United Kingdom’s Information Commissioner warned against the danger of such information collection in the UK. From the viewpoint of efficient administration, of course, the objection seems odd: why, unless the citizen is up to no good, should he mind that all agencies of the state can look at any information another agency legitimately holds? Why should the tax authorities, for example, not know what the pensions authorities know about X’s income, unless X is tax dodging? It comes down, in part, to citizen trust in the state, but it must be recognized that the totality of information gained on each citizen is now so enormous that even mild distrust may justify the concerns of all courts.

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