This essay will seek to examine how far international law inhibits national states in relation to border control.

Under Article 13 of the Universal Declaration of Human Rights:

Everyone has the right to freedom of movement and residence within the borders of each state.Everyone has the right to leave any country, including his own, and return to his country.

According to David Matas, the right of freedom of movement is a fundamental part of what it means to be human, which is found everywhere in national law as a human right but is found nowhere in international standards.

SatvinderJuss agrees with Matas, he asserts that the most fundamental of man’s liberties is freedom of movement. Without it, other rights are precarious and the world order depends on it. In support of his statement, Juss goes on to lists values such as mutual aid, humanity, hospitality, comity, mutual intercourse, and good faith, which all depends on the right of free movement for their effectiveness.

In addition, the Human Rights Education Associates (HREA) state that the denial of freedom of movement within international or national borders can have an effect on an individual or his or her family. For example, the restriction of freedom of movement can have a detrimental effecton an individual’s right to marriage, family life, education or job which could improve the lives of individuals coming from poor countries.

Despite Matas and Juss’s emphasis on the importance of freedom of movement, and the HREA’s explanation of the detrimental effect of freedom of movement, AnaisAtger offers an explanation on why states spend a huge amount of time and money protecting their borders. According to Atger, border controls have always been “conceived as the outer limits of the power of a sovereign state upon a population in a specific space.” As such, border control measures are used by states to demonstrate their supreme and independent authority to control their territories. Sovereign states boast the right indeed, to decide who to let in or restrict from entering their territory.

However, there have been assertions that state sovereignty is being loosened by international law especially in the field of migration.

According to Antoine Pecoud and Paul de Guchteneire, migration is commonly understood to be a problem especially in security terms.In recent years, terrorism related concerns have put both the UK and US borders into the spotlight. Fuelled by attacks such as September 11 terrorist attacks and July 7 bombings, border control has consequently become one of the most important policies for both the UK and US.

Having only mentioned both the UK and the US, other countries such as Italy, Lebanon, Iraq, Pakistan and Russia have all been subjected to terrorist attacks prior to September 11 terrorist attacks and the July 7 bombings.

Despite statelawsto control their borders irrespective of national security, their sovereignty is being loosened byglobalizationthe revenue international migrationgenerates. According to SaskiaSassen, sovereignty has been affected by globalization and it has been accompanied by the creation of new legal regimes and practices.  Sassen also include that there is a growing consensus in the community of states to lift border controls for the flow of capital, information, and services and, more broadly, to further globalization.

In relation to international migration, Khalid Koser states that the unwillingness to surrender national control over international migration is understandable. This is due to the fact that, cooperation on international migration sometimes appears too great to overcome. For example, developed economies that want to protect the national labour marketand admit workers on a selective basis are pitted against developing countries with rapidly expanding and youthful populations that are in greater demand to unrestricted labour markets.

As Pecoud and Guchteneire assert, migration is now structurally embedded in the economies and societies of most countries whether in form of remittances, cheap labour or domestic services. This further creates strong incentives for migration and effort to stop it becomes extremely difficult.

Furthermore, to some extent, it can be argued that the power to control borders by states has been weakened due to transnational business and trade, movement of information and capital across borders. Despite the fact states might implement a number of national policies to restrict the incoming number of people; International law in some way inhibits this due to the fact that states have to adhere to freedom of movement of people involved in different economic activities.

However,it is not only Article 13 of the Universal Declaration of Human Rights (freedom of movement) that states have to abide to. As many states sign treaties in form of agreement, conventions and protocols they are obliged to keep to their promises. An example of a convention in relation to migration is the 1951 Convention Relating to the Status of Refugees.The convention, a key statutory instrument used in determining who qualifies for refugee status, offers key requirements in which individuals must possess in order to qualify for refugee status.

In relation to how the Refugee Convention can inhibit national states to control their borders can be found in Article 33 of the 1951 Refugee Convention. Article 33 of the 1951 Refugee Convention obligates a state not to “expel or return a refugee in any manner whatsoeverto the frontiers of territories where his life or freedom will be threatened”.However, due to the fact states were concerned about the securities of the respective countries, a second paragraph was inserted under Article 33 that the non-refoulement right could not be claimed by anyone who had been convicted of a serious crime or a security risk to the receiving country.

Another international instrument which could be said to inhibit national states to control their borders can be found in the wording of Article 3 (1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention provides that ‘no State party shall expel, return or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture’. According to Jessica Rodger, Article 3 (1) provides a broader protection than the 1951 Convention due to the fact that it is an absolute right, however the effect of Article 3 (1)are restricted owing that it only applies to situations involving torture.

Furthermore, having stated howglobalization,international migration and some international instruments such as the Refugee Convention and the Convention Against Torture can inhibit national states to control their borders.

To some extent, it is not completely true that international law inhibit national states to control their borders.

Despite state honouring of international laws, in any event, international law does not supersede the national law of a respective state.For example, although the UK and Australia are signatories to the Refugee Convention, some aspect of their domestic law breaches the non-refoulement principle.According to Mary Bosworth, the UK is insistent that it will return whomever it can to safe third countries or territories, rather than offering them asylum (Immigration and Nationality Act, 1971). Similarly, under Section 36 (3) of the Border Protection Legislation Act 199, Australia would not protect an asylum seeker who has ‘not taken all possible steps to avail himself of a right to enter and reside in any country apart from Australia’.

As a result of the examples given, it can be said that international conventions are mere agreementstates abide which although binding do not take effect as national laws. I.e. States have the right to deny or allow entry across their borders under national laws. When there is a breach of international law they are only subjected to sanctions. However, when countries such as the US breaches international law there are hardly any sanctions placed upon them due to their economic and political strength. Therefore, it can be said that international agreements are tools used by stronger countries to bully weaker countries into abiding to certain agreements.

Therefore, to a certain extent, international law does not inhibit the ability of “strong nation states” such as USA, France, Russia, China and the UK to control their borders due to the fact they can withstand any sanctions place upon them if they were to breach international law.

However, to a great extent, international law does inhibit the ability of nation states that are not economically and politically sound to control their borders. This is due to the fact that “lesser states” ( those states not economically and politically strong) have to reduce border strictness in order to facilitate the flow of capital, information, cheap labour and domestic servicesas asserted by Sassen, Pecoud and Guchteneire.

Finally, international law also inhibits the ability of national states to control their borders due to fear of a breach of international law would lead to sanctions such as the withdrawal of aid from countries with strong economies.

Bibliography

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Human Rights Education Associates, Freedom of Movement (1996-2011) <http://www.hrea.org/index.php?doc_id=409>accessed 18 January 2012

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