The interaction between the denationalizing of key economic institutions and spaces, on the one hand, and the renationalizing of politics on the other provides one of the main contexts for immigration policy and practice today. We see a growing consensus in the community of states to lift border controls for the flow of capital, information, services, and more broadly, to further globalization. Yet when it comes to immigrants and refugees, whether in North America, Western Europe, or Japan, we see the national state claiming all its old splendor and asserting its sovereign right to control its borders, a right that is a matter of consensus in the community of states.
What does it mean for the state to relinquish sovereignty in some realms and to continue to be sovereign in others? If we accept, as I do, that the state itself has been transformed by its participation in the implementation of laws and regulations necessary for economic globalization, we must accept as a possibility that sovereignty itself has been transformed. Elsewhere (1996b) I have argued that exclusive territoriality - a marking feature of the modern state - is being destabilized by economic globalization and that we are seeing the elements of a process of denationalization of national territory, though in a highly specialized institutional and functional way. Further, the particular combination of power and legitimacy we call sovereignty, which has over the last century become almost synonymous with the national state, is today being partly unbundled, redistributed onto other entities, particularly supranational organizations, international agreements on human rights, and the new emergent private international legal regime for business transactions (Ibid,). With all of this happening, what does it mean to assert, as is repeatedly done in the immigration literature, that the state has exclusive authority over the entry of non-nationals? Is the character of that exclusive authority today the same as it was before the current phase of globalization and the ascendance of human rights as a nonstate-centered form of legitimate power?(1)
My analysis focuses largely on immigration in the highly developed receiving countries. I use the notion of immigration policy rather broadly to refer to a wide range of distinct national policies. I should note that it is often difficult to distinguish immigrants and refugees. Yet there is (still) a separate regime for refugees in all these countries. Indeed, there is an international regime for refugees, something that can hardly be said for immigration. The focus in this brief essay is on the constraints faced by the state in highly developed countries in the making of immigration policy today.(2)
The Border and the Individual as Regulatory Sites
In my reading there is a fundamental framework that roots all the country-specific immigration policies of the developed world in a common set of conceptions about the role of the state and of national borders. The purpose here is not to minimize the many differences in national policies, but to underline the growing convergence in various aspects of immigration policy and practice.(3)
First, the sovereignty of the state and border control, whether land borders, airports, or consulates in sending countries, lie at the heart of the regulatory effort. Second, immigration policy is shaped by an understanding of immigration as the consequence of the individual actions of emigrants; the receiving country is taken as a passive agent, one not implicated in the process of emigration. In refugee policy, in contrast, there is a recognition of other factors, beyond the control of individuals, as leading to outflows.(4) Two fundamental traits of immigration policy are, then, that it singles out the border and the individual as the sites for regulatory enforcement.
The sovereignty of the state when it comes to power over entry is well established by treaty law and constitutionally. …