The role of the state in migration control : the legitimacy gap and moves towards a regional model / by Aoife McMahon.
2017
K3275 .M36 2017 (Map It)
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Details
Title
The role of the state in migration control : the legitimacy gap and moves towards a regional model / by Aoife McMahon.
Published
Leiden ; Boston : Brill Nijhoff, [2017]
Call Number
K3275 .M36 2017
ISBN
9789004330047 (hardback : alk. paper)
9004330046 (hardback : alk. paper)
978904330054 (e-book)
9789004330054
9004330046 (hardback : alk. paper)
978904330054 (e-book)
9789004330054
Description
viii, 310 pages ; 25 cm.
System Control No.
(OCoLC)956340476
Summary
This research questions the seemingly ossified premise that states have an absolute discretion to control international migration. Applying Max Weber's theories of legitimacy, it determines that while states have certain traditionally legitimate functions, migration control, as distinct from the determination of citizenship, is not one such function. Measures of migration control must thus be justified on a rational-legal basis, that is, on a minimal evidential basis. Acknowledging the many obstacles states face in carrying out this legitimising exercise, it is suggested that a supranational approach at the regional level is the most sustainable long-term model, with an ultimate aim of achieving inter-regional cooperation on migration management on the basis of equality between regions.
Note
Based on author's thesis (doctoral - Trinity College Dublin), 2015.
This research questions the seemingly ossified premise that states have an absolute discretion to control international migration. Applying Max Weber's theories of legitimacy, it determines that while states have certain traditionally legitimate functions, migration control, as distinct from the determination of citizenship, is not one such function. Measures of migration control must thus be justified on a rational-legal basis, that is, on a minimal evidential basis. Acknowledging the many obstacles states face in carrying out this legitimising exercise, it is suggested that a supranational approach at the regional level is the most sustainable long-term model, with an ultimate aim of achieving inter-regional cooperation on migration management on the basis of equality between regions.
This research questions the seemingly ossified premise that states have an absolute discretion to control international migration. Applying Max Weber's theories of legitimacy, it determines that while states have certain traditionally legitimate functions, migration control, as distinct from the determination of citizenship, is not one such function. Measures of migration control must thus be justified on a rational-legal basis, that is, on a minimal evidential basis. Acknowledging the many obstacles states face in carrying out this legitimising exercise, it is suggested that a supranational approach at the regional level is the most sustainable long-term model, with an ultimate aim of achieving inter-regional cooperation on migration management on the basis of equality between regions.
Bibliography, etc. Note
Includes bibliographical references (pages 249-294) and index.
Available in Other Form
Online version: McMahon, Aoife (Lawyer), author. Role of the state in migration control Leiden ; Boston : Brill Nijhoff, 2016 9789004330054 (DLC) 2016044937
Record Appears in
Table of Contents
Acknowledgments
ix
Introduction
1
1.
Concept of the State and Its Justification
11
Introduction
11
1.
From Social Organisation to Political Organisation
11
2.
Justifying Political Power
14
2.1.
Constitutionalism
14
2.2.
Social Contract
17
2.3.
Democracy
19
2.4.
Nation State
22
2.5.
Sovereignty
28
2.5.1.
Origins of the Concept of Sovereignty
28
2.5.2.
Circumscription of the Sovereign State
31
2.5.3.
Clarification of the Limited Role of Sovereignty as a Descriptive Term
32
2.6.
Hypothetical Consent Theories
34
Conclusion
38
2.
Development of State Control of Migration
41
Introduction
41
1.
Early Migration Control
43
1.1.
Britain
43
1.2.
America
47
2.
Turning Point to General and Systematic Control
50
2.1.
Britain
52
2.2.
America
54
3.
Continued and Enhanced State Control of Migration
59
Conclusion
60
3.
Limits on State Control
62
Introduction
62
1.
International Protection
62
2.
Fundamental Rights Regimes
68
2.1.
Right to Liberty and Security of the Person
70
2.2.
Right to Respect for Private and Family Life
73
2.3.
Fair Procedures in Criminal Law
74
2.4.
Right to Privacy
76
3.
Regional Migration Regimes
78
3.1.
Setting the Context: Initial Restrictive Measures of the Intergovernmental Arms
80
3.2.
Free Movement of Persons in the European Union
85
3.3.
Internal Free Movement
86
3.3.1.
Ratione Personae
86
3.3.2.
Ratione Materiae
88
3.4.
External Free Movement
91
4.
Global Free Market Economy
95
4.1.
Economic Studies
95
4.1.1.
Crowding-out Effect
97
4.1.2.
Increased Investment and Innovation
98
4.1.3.
Substitutability/Complementarity Dichotomy
100
4.2.
Economic Pressure from National and International Bodies
103
Conclusion
106
4.
Defining the Object of Control
107
Introduction
107
1.
Understanding Migration
107
2.
Economic Approach
110
2.1.
Assumed Three Principal Economic Determinants
111
2.2.
Principal Assumptions Don't Add up
113
3.
Contribution of Sociology
117
4.
Contribution of Demography: Empirical Data
121
4.1.
Problems Inherent in Collecting Migration Data
122
4.2.
International Sources of Migration Data
125
Conclusion
129
5.
Legitimacy of State Control
131
Introduction
131
1.
Movement as Distinct from Membership
132
1.1.
Various Phases of Migration
132
1.2.
Individual Rights of Migrants
132
1.3.
Conditions for Naturalisation
139
2.
Based on Tradition
142
2.1.
Customary International Law
143
2.2.
Traditional Internal State Function
148
3.
Based on Rationality
155
3.1.
Absence of Transparent Rational Justification of State Migration Control Measures
156
3.2.
Irrationality
159
3.2.1.
Evidence of Irrationality at EU Level
160
3.2.2.
Intergovernmental Arms v. Supranational Arms of the EU
164
Conclusion
168
6.
Obstacles to Legitimising State Control
170
Introduction
170
1.
Technical Incapacity
172
2.
Competing Political Interests
177
2.1.
Association of Immigration with Topical Political Problems
178
2.2.
Immigration as a Useful Political Tool
183
3.
Economic Free Market Parallel
187
3.1.
State Control in the Economy
187
3.2.
Different Approach to Labour
193
3.3.
Case for Similar Treatment
197
Conclusion
202
7.
Moving beyond the Status Quo
203
Introduction
203
1.
At the National Level
204
1.1.
Independent Advisory Body
204
1.2.
Working with Private Actors
207
1.3.
Role of National Courts
210
2.
At the Global Level
211
2.1.
Existing Candidates
211
2.2.
Theoretical Proposals for a New Global Body
217
3.
At the Regional Level
221
3.1.
Advantages of Regional Control in the Example of the European Union
221
3.2.
Enlargement
226
3.3.
Third Country Agreements: The European Neighbourhood Policy (ENP)
227
3.4.
Third Country Agreements beyond the ENP: Bilateralism v. Multilateralism
229
3.5.
Distinguishing EU Foreign Policy from Immigration Policy per se
233
3.6.
Moving towards Greater Inter-regional Cooperation
234
3.7.
Inter-regional Dispute Resolution
238
Conclusion
240
Conclusion
243
Bibliography
249
Index
295