New York University Public Law and Legal Theory Working Papers

Title

The Constitutional Status of Irregular Migrants: Testing the Boundaries of Human Rights Protection in Spain and the United States

Document Type

Article

Comments

ARE HUMAN RIGHTS FOR MIGRANTS? CRITICAL REFLECTIONS ON THE STATUS OF IRREGULAR MIGRANTS IN EUROPE AND THE UNITED STATES, Marie Dembour, Tobias Kelly, eds., Routledge 2011

Abstract

Human rights discourse focuses on personhood as the source of entitlement, but the persistence of national sovereignty as an organizing concept means that rights-respecting governments can discriminate against non-citizens. At the same time, rights discourse has prevented non-citizens from being entirely instrumentalized, as reflected in courts’ application of domestic constitutional norms and international human rights principles to protect territorially present non-citizen. The irregular migrant, however, challenges this compromise by highlighting the limits on the state’s sovereign control over its territory, but in the form of a person endowed with dignity and therefore deserving of respect regardless of status. In this chapter, we consider how the irregular migrant has come to be defined as a rights holder in the United States and Spain, with a view to understanding how legal status constrains the application of universal human rights principles, as well as how the turn to universalism complicates the state’s ability to set clear limits around the polity. In Spain, the concept of dignity and other developments in international human rights law substantially shape the Spanish court’s consideration of the extent to which irregular migrants possess various rights. In the United States, the courts have run the question of whether irregular migrants have rights through the concept of personhood and in relation to social policy concerns. In both cases, the irregularity of status leaves open space for contestation in the political sphere and has given rise to rights conditioned on policy preferences.

Date of Authorship for this Version

8-2010

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