bfi 2015 ld immigration hr

8/18/2019 BFI 2015 LD Immigration HR

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Resolved: Immigration ought to be a Human Right

File Author: Kyle Cheesewright

Immigration ought to be recognized as a human right............3o!ic Analysis............................................................................."

Additional Readings....................................................................#A$rmative.................................................................................%

Top of Case................................................................................................ 8Contention One: Discussions of Immigration Policy misdirect the public’sattention, ignoring uestions of human dignity........................................!"Contention T#o: $ighting against immigration has pro%ed itself to be acostly, and counterproducti%e enterprise................................................!&Contention Three: 'istorical (nalysis of Immigration Debates re%eal thatcontinued enforcement of immigration policy, #ithout a dedication tohuman rights results in systematic oppression, destroying dignity..........!)(": *egati%e Propaganda........................................................................"!

+ tension: 'uman -ights Connections...................................................."(": It’s /ood for the +conomy.................................................................")(": Communitarianism............................................................................"0

&egative...................................................................................3'Contention One: The logic of human rights claims are based on a 1a#edunderstanding of the #orld according to 2ni%ersal Indi%idualism,hampering e3ecti%e action......................................................................Contention T#o: Immigration relies on the logic of citi4enship, #hichultimately rei5es the harms it attempts to alle%iate................................ 6On7Case Cards.........................................................................................+ tension: 2ni%ersal Indi%idualism.......................................................... 0

(lternati%es to 'uman -ights..................................................................&&+ tension: Citi4enship 9ogics ad............................................................&)


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Immigration ought to berecognized as a human right.


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o!ic Analysis This topic as;s debaters to e plore uestions of Immigration in relation toissues of human rights. 2nsurprisingly, this topic has uite a bit of literaturesurrounding it, and pro%ides a really deep base for argumentation, both from

a practical perspecti%e, and a philosophical one. Initially, discussions aboutimmigration ha%e a great deal of contemporary cultural cache. (lmostnothing inspires more discussion than immigration issues, both in the 2niteduch of the literature focuses on ho# to balance the interests of anindi%idual nation7state, #ith the concerns about human rights for thosesee;ing entry into a nation. These debates are often related to di3erentstatuses of immigrants, and as; pretty speci5c uestions. $or e ample, policybased literature on uestions of immigration ?#hich almost al#ays include aphilosophical component@, are interested in di3erent types of immigrants:(sylum see;ers, undocumented migrants, temporary #or;ers, highly s;illed#or;ers, etc. $rom a conse uentialist, more policy focused angle, a debater#ould probably #ant to select a particular group, and e plore #hy theirmo%ement being lin;ed to human rights is an acceptable and pro%ocati%eparametric approach to the resolution. (sylum see;ers, in particular, are aripe area for e ploration. Their reasons for see;ing the ability to mo%ebet#een nation7states is al#ays connected #ith uestions of human rightsAand the uestions they raise place the tension bet#een a smoothlyfunctioning nation7state and human rights issues in a particularly clear focus.

$rom a more broad philosophical perspecti%e, there is also uite a bit ofliterature about immigration and human rights. Communitarians, fore ample, strongly belie%e in the decisi%e and uni%ersal right for a communityto defend and enforce its borders. $rom this perspecti%e, immigration as ahuman right is in direct con1ict #ith a stronger form of so%ereigntyAthat ofthe nation state. BOpen borders and Bfreedom of mo%ement philosophicalperspecti%es, on the other hand, strongly ad%ocate for the right of indi%idualsto mo%e across borders, and some interesting #or; is being done to delin;

Bfreedom of mo%ement from Bopen borders #hich could be incorporatedinto either a rmati%e or negati%e strategiesAdepending on your le%el ofcomfort #ith controlling framing issues in a debate round. $urthermore, someradical perspecti%es uite thoroughly uestion the importance of discoursesof human rights, and ho# they are incorporated into our current system,pro%iding an interesting route into ob=ecting to human rights as a method ofsecuring the guarantees of citi4enship.


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$or the purposes of this 5le, you #ill 5nd arguments that approach this topicprimarily from radical perspecti%es. The a rmati%e is a more traditionaldefense of dignity and freedom of mo%ement, lin;ed into philosophical andpractical readings of the immigration debate ultimately arguing for theopening of borders. There is a lot more research to be done on these

uestions, and de%eloping this into a full, competiti%e strategy #ill in%ol%eadditional research.


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Additional Readingsarry, rian and -obert +. /oodin ?+ds@. Free Movement: Ethical Issues in the

Transnational Migration of People and Money. 2ni%ersity Par;, P(: ThePennsyl%ania . BImmigration and 9iberal +galitarianism. Philosophy Study H ?"G! @: !)67! 0.

Milco ,


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A$rmative


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o! o( CaseIn light of our =ourney from our home countries to >osco# and bac; from

ei=ing, as #ell as the collecti%e trip ta;en by all those in%ol%ed in theNCapturing the >o%ing >ind’ pro=ect across the -ussianH>ongolian and>ongolianHChinese border, #e #ish to articulate a similar demand #ith asimilar aim: unfettered mobility for indi%iduals and collecti%es, the dissolutionof all borders that separate, isolate, contain, limit, enable %iolent forms ofe traction and in=ustice, and impede political imaginings and futures. In anera dominated by the discourse of mobility, the organi4ation of mo%ementand space through an older technology that of border line, an entity asabstract and full of metaphysical subtleties as any other in the le icon ofhuman thought remains essential to the smooth operations of capital.Mithout the border, there #ould be no di3erential 4ones of labour, no spacesto reali4e surplus capital through the dumping of o%erproduction, no #ay ofpatrolling surly populations that might #ant to resist proletariani4ation, norelease %al%e for speculati%e access. The demand for free mo%ementchallenges not only the logics of contemporary economics, but also theoperations of the political, #hich ha%e long been premised on theestablishment of 4ones of inclusion and e clusion, control o%er the legalstatus of citi4en7sub=ects, practices of demographic accounting andmanagement, and the mobili4ation of bodies for use in territorial e pansionand #ar. *o bordersF Or =ust as #ell: free mo%ementF Mhat insights does sucha demand produce #ith respect to the ;ey forms through #hich po#er andsocial control are e erted today (nd #hat ;ind of political possibilities dothese insights generate in turn It is clear enough that the possibility ofunfettered mo%ement a #orld #ithout border controls, identity papers,5ctions of national belonging, death and destruction o%er abstract

geographies #ould necessitate a social order radically di3erent from e%eryone hitherto imagined. The physical remnants of #hat #e call Nhistory’ aremar;ed by the long human drama of the production and patrol of borders:cathedrals, castles, city #alls and gates, districts, patrol to#ers, chec;points

e%en the physical geography of ri%ers, bodies of #ater, and mountainranges, transformed by their role as di%iding mar;ers. The streetscapes ofmodernity, path#ays for the dreamy #anderings of the 1Qneur, are alsodesigned #ith the aim of enabling the uic; and e cient deployment of menand military e uipment, both to manage unruly internationalists at home?communists, postcolonials, and the li;e@ and to face the incursion of foreignarmies across the sacred line di%iding one nation7state from another.


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capitalR the control o%er migration and nation7state so%ereigntyR the patrollingof cultural borderlinesR and the collapse of the labour and leisure into a timeof perpetual production.

It is because I agree with the words o( Carlos Fernandez)*eredith +ill) Imre ,zeman) and -essica hite that I a$rmthe R/,012 I0&:Mhyte et al. N) ?Jessica, PhD candidate in the Centre for Comparati%e9iterature and Cultural onash 2., (ustralia, Carlos $ernande4,Doctor in adrid, eredith /ill, PhD candidate in the Program inComparati%e


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something that must merely be acceptedR rather it is something that callsforth certain attitudes and reactions. Dignity must be respected or protectedor promoted. The %iolation of the inherent dignity of humans is a form ofse%ere #rongdoing and is not =ust the %iolation of a particular right humanbeings ha%e. It is rather related to the moral status of human beings.! (cts of

degradation or humiliation are paradigm %iolations of dignity." (s Maldronputs it. B( good account of human dignity #ill U generate an account of theban on humiliating and degrading treatment. (cts of degradation andhumiliation do not =ust impair the interests or the autonomy of the %ictims:they stri;e at the moral status itself. y acts of degradation #e treat othersas if they had no say, as if #e had the right to treat them in #hate%er #ays#e please. The %iolation of dignity consists in treating others as if they had nonormati%e authority o%er themsel%es and o%er ho# they are treated. I thin;that it is this normati%e authority #hich is meant by dignity and #hich isparadigmatically disrespected by acts of degradation and humiliation.& ytreating indi%iduals in this #ay one denies the e istence of any normati%eauthority on their part.6 It seems to me that this idea of normati%e authorityis more central to the understanding of human rights than other things suchas basic needs or interests. B*ormati%e authority , in the sense rele%ant tothe present discussion, is the authority to do #hat one #ants #ith regard to#hate%er falls #ithin the pur%ie# of one’s authority. It is not simply thecapacity to do #hat one #ants, but the right to do so, and so encompassesthe right not to be obstructed in one’s actions as carried out #ithin thesphere of one’s authority. Mhat is it that falls under our normati%e authority

The ob%ious ans#er is: anything that is important in my lifeAfor e ample,#ho I li%e #ith, #ho I marry, #hat profession I choose, #hat pro=ects I ta;eup, etc. That human beings ha%e normati%e authority o%er these thingsmeans that they ha%e the right to determine #ho they li%e #ith, #ho theymarry, etc., and that they may not be hindered in their en=oyment of theserights. Larious rights included in the 2ni%ersal Declaration of 'uman -ightsprotect e actly this normati%e authority: the right to freedom and security ofthe person ?(rt. @, the right not to be held in sla%ery or serfdom ?(rt. &@, theright not to be sub=ected to cruel, inhuman or degrading treatment ?(rt. 6@,the right to be recogni4ed as a person before the la# ?(rt. )@, the right tomarry and to form a family ?(rt. !)@, the right to religious freedom and thefreedom of opinion ?(rt. !8@, to name =ust a fe#. 2pon closer e amination itbecomes clear that it is not =ust liberty rights #hich protect the normati%eauthority of human beings, but also social and cultural human rights such asthe right to an ade uate standard of li%ing ?(rt. "6@, the right to a basiceducation ?(rt. ")@, and the right to freely participate in the cultural life of thecommunity ?(rt. " @. Ta;e, for e ample, the right to ade uate li%ingconditions, including food, clothing, housing, medical care and necessarysocial ser%ices, and the right to security in the e%ent of unemployment,sic;ness, in%alidity and #ido#hood ?(rt. "6.!@: These rights protect basicneeds in the absence of #hich one cannot lead a minimally good life, but theattribution of these rights is not =usti5ed simply on the grounds that these areneeds that must be accommodated. -ather, human beings ha%e the right to


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ade uate li%ing conditions in order to be able to e ert their normati%eauthority: human beings should be able to li%e a life as they please, in so faras this is possible, but this re uires that they possess certain goods in theabsence of #hich their scope for e pressing their authority #ould be se%erelycurtailed. $or e ample, someone #ith no access to nutrition or #ater #ould

be unable to e ert her normati%e authority. *ormati%e authority can only bee erted #hen there are acceptable options from #hich to choose. If this istrue, it could be the e ercise of our normati%e authority that is protected bycertain rights such as the right to liberty and security, the right not be held insla%ery or ser%itude, the right not to be tortured and degraded, the right toan ade uate standard of li%ing and the other rights mentioned abo%e.

In order to u!hold 4ignity) I !ro!ose a criterion o((reedom o( movement) which !hiloso!her ,helly ilcolin;s to the right to move across borders) e !laining:

>ore recently, Carens has de%eloped t#o additional arguments in support ofopenborders.0These arguments forego speci5cally -a#lsian concepts,dra#ing instead on general liberal egalitarian ideals. The 5rst contends thatthe liberal commitment to freedom implies a basic human right to freeinternational mo%ement. The argument rests on an analogy bet#een freemobility #ithin a nation7state and free international mobility. Carens beginsby ac;no#ledging that free internal mobility is an important liberal free7dom.9iberals belie%e that Npeople should be free to pursue their o#n pro=ects andto ma;e their o#n choices about ho# to li%e their li%es so long as this doesnot interfere #ith the legitimate claims of other indi%iduals to do li;e#ise’?N>igration and >orality’")@. Thus, since restrictions on internal mo%ement#ould un=ustly curtail such freedom, free internal mobility is #idelyrecogni4ed as a basic right of liberal citi4enship. Carens then argues that theability to mo%e across state borders is an e ually important freedom because,in his %ie#, e%ery reason an indi%idual might ha%e for mo%ing #ithin acountry could also apply to mo%ing across state borders. To name =ust a fe#:one might #ant a =obR one might fall in lo%e #ith someone from anothercountryR one might belong to a religion that has fe# adherents in one’s nati%estate and many in anotherR one may #ish to pursue cultural opportunitiesthat are only a%ailable in another land ?N>igration and >orality’ "8@.


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Contention 0ne: 4iscussions o( Immigrationolicy misdirect the !ublic8s attention) ignoring


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barriers to crumble under the #illingness of human desire. $rom a purelyeconomic point of %ie#, the dri%e for immigration comes from the multitudeof factors #hich include persisting po%erty, n60 gro#ing unemployment, n)Gloss of an agrarian #ay of life, n)! and loss of income as a result of globaltrading realignment. n)" 2nder no circumstances do these constitute an

e hausti%e list of factors that dri%e people to the unforgi%ing desert high#ayalong the 2.e ican border in search of a better lifeR or that dri%es adesperate mother and children to stac; themsel%es li;e sardines into thebac; of a truc; #ith no %entilation #hich ultimately becomes the tomb ofmany of its occupants. This dri%e is not so di cult to comprehend #hen youconsider that increasing globali4ation of labor may ha%e brought e cienciesand economies of scale from a corporate point of %ie#, but from the humanpoint of %ie#, it has caused a se%ere and disproportionate distribution ofresources. n) This has resulted in signi5cant ine uity among the masses ofthis #orld, and I #ould argue that #e must recogni4e the issue of immigrationfrom this broader human7rights dimension.


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Contention wo: Fighting against immigrationhas !roved itsel( to be a costly) and

counter!roductive enter!rise.

Argentina has !assed constitutional legislation declaringimmigration a basic human right) while the 2, hascontinued to ?ght immigration. 2nsur!risingly) 2, !olicyhas been an e !ensive) and dismal) (ailure.Hines) 5'6' ? arbara, VClinical professor of la# at the 2ni%ersityof Te as igrate as 'uman -ight: The Current (rgentineImmigration 9a#. $ornell International &a %ournal & CornellInt’l 9.J. & !@

'uman rights groups, immigrant communities, and constitutional scholarsenthusiastically greeted the ne# la# #hose fundamental principles supportthe right to immigrate as a human right and pro%ide protections for additionalhuman rights and basic e uality. n80


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liberali4e the current immigration la#s in the 2nited


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the (rgentine immigration la# is a #elcome change and, re1ecting di3erentrealities, demonstrates a mar;edly distinct approach to immigration policy.


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Contention hree: Historical Analysis o( Immigration 4ebates reveal that continued

en(orcement o( immigration !olicy) without adedication to human rights results in

systematic o!!ression) destroying dignity.

A. Historical analysis o( immigration !olicy reveals thatracist attitudes have historically driven immigration!olicy) ignoring the connection between immigration andhuman rights.+hoshray) 5''% ?ilitary Tribunals, and Cyberspace 9a#W

BImmigration: oth


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se , language, religion, political or other opinion, national or social origin,property, birth or other status. $urthermore, no distinction shall be made onthe basis of the political, =urisdictional or international status of the country orterritory to #hich a person belongs, #hether it be independent, trust, non7self7go%erning or under any other limitation of so%ereignty. n6G -ace7based

discrimination in processing immigrantsX entry to the 2nited


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=urisprudence. +arlier, I suggested that the right to migration as a humanright comes from a broader interpretation V[!! W of the right to the highestattainable status for an indi%idual. The uestion, then, is #hether there is afundamental right to migration, and #hat is the test #e can employ todetermine if this is indeed a fundamental human right $irst and foremost, let

us begin #ith the concept of rights, and ho# they are created. >ost countriesXconstitutions contain a set of rights, =ust li;e the 2.


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C. he threats o( terror on the border are merely the @i!side o( the global im!erial mission to eliminate all non=American evil (rom the globe it inevitably creates violentbac;lash and (ails. Bou must vote (or the a$rmative tochallenge these regimes o( domination through assertingthe (undamental rights o( all.,ha!iro % ?>ichael J., Department of Political


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(rmy is struggling to recruit ne# soldiers and #hen the enlistment of (frican7(mericans, a group particularly disillusioned #ith the #ar in Ira , has droppedo3 sharply, to !&.6 percent from "". percent o%er the past four years?(l%are4, "GG)@. Mhere are the recruiters searching The story continues: art here for recruits, past stac;s of pillo#s and to#ers of detergent, he is4eroing7in on one of the (rmy’s Nspecial missions’: to increase the number of'ispanic enlisted soldiers. ut the military’s domestic initiati%es go beyondcollecting bodies. It is also militari4ing other agencies, assembling them#ithin #hat I ha%e called the Ntertiary spatiali4ation of terrorism’. (s theauthor of The Pentagon’s *e# >ap points out, Na #hole lot more than =ust theDefense Department’ is acti%ely pursuing the N#ar on terror’ ? arnett, "GG&:06@. One aspect of that broadened participation is e%ident in a recentcollaboration bet#een three ;inds of institutions: 'olly#ood 5lm7ma;ing, themilitary, and the uni%ersity, all of #hom share participation in the 2ni%ersityof


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A5: &egative ro!aganda>e s;e!tical o( anti=immigration claims) they are based on!olitical !ro!aganda with a loose relationshi! to reality.+hoshray) 5''% ?ilitary Tribunals, and Cyberspace 9a#WBImmigration: oth


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Anti=Immigration activists cast immigration as a !rivilege)which results in the abrogation o( human rights and theinability to discuss immigration8s connections to humanrights.+hoshray) 5''% ?ilitary Tribunals, and Cyberspace 9a#WBImmigration: oth


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resides an absolute abrogation of human7rights ideals that has been theheartbeat of (merican democracy.


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/ tension: Human Rights Connections3 broad human=rights based Dusti?cations (or immigration.+hoshray) 5''% ?ilitary Tribunals, and Cyberspace 9a#W

BImmigration: oth


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*ot all rights are fundamental rights nor are they all human rights, as rightscould be en%isioned, rights could be structured, rights could e%en bederi%ati%e of e isting rights. In order for them to ualify as analogous to basicfundamental human rights, the rights must pass the shoc;7the7consciencetest. $rom this discussion, it is natural to see that the right to migration #ould

be #ithin the premise of a human right, but does not pass the shoc;7the7conscience test unless a gross and egregious %iolation of humanity is ta;ingplace.


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2nderstanding the relationshi! between immigration andasylum !olicy is o( vital im!ortance (or human rightsdiscourses.KDaerum) 5''5 ?>orten, VDirector for the Danish Center of'uman -ightsW B-efugee Protection et#een


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A5: It8s +ood (or the /conomy/conomic conditions in many nations are a result o(e !loitative economic !olicy (rom develo!ed nations)creating a moral obligation (or develo!ed nations.

+hoshray) 5''% ?ilitary Tribunals, and Cyberspace 9a#WBImmigration: oth


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both the uality of production and the uantity of production, >e icanfarmers are falling behind, and resorting to the abandonment of their cropsand farm lands. n 8 These landless farmers, are the %ery immigrants that puttheir fate in coyotes and cross the border the borders into (merica in searchof a better life. 9et us e amine #hy *($T( #as created. Though e uality and

e uity #as the premise for creating *($T(, it #as designed to dominate the*orth (merican agricultural sector and to gi%e an upper hand to the(merican farmers. Mhile this agenda #as successful, it had an ad%erseimpact on the farmers in >e ico, #ho cannot compete #ith their 2.e ican farmers are luc;y to ha%e 67 acres of land to #or;, #hereas their(merican and Canadian counterparts en=oy the blessings of "6G acres ona%erage. n 0 This simple fact alone issues a death sentence to the >e icanfarmer.


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e amples abo%e pro%ide ample basis to assert that the 2nited e ico, n!G" so much that thousands of people #ere left #ith no alternati%efor their 5nancial future. n!G Do these people ha%e legitimate rights toimmigration to the 2nited


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A5: CommunitarianismImmigration debates !rove @aws in communitarian ideals.+ordon G 1enhardt) 5''% ?Jennifer K -. (., V(ssociateProfessors of 9a# at $ordham


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&egative

'uman rights are not transcendent. They are situated s uarely #ithin speci5csocial and political conte ts through #hich they are constructed andenforced. The %ery real danger of a uni%ersal indi%idualist approach is thathuman rights can appear to reside beyond the political fray #hile mas;ingdeep ine ualities that e ist #ithin the societies and polities in #hich theyreside. If #e are to be serious about alle%iating %ulnerability, #e mustconstantly be %igilant of this danger and critical of the political and structuralroots of human rights.

It is because I agree with this


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In order to negate today8s resolution) I o9er a value o(di9erence) which -ohn . arren e !lained as:?VProfessor of Communication,


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ne#, more agile, thought that palpates #hat it cannot concei%e and gesturesat #hat it cannot grasp. ?pp. !!&]!!6@ Mhat Deleu4e brings ?and #hat I’mattracted to and, perhaps, not yet able to say #ith elo uence@ is the hopeembedded in reconcei%ing of #ho #e are to such a degree that in order toli%e as he #ould ha%e us li%e, #e #ould be able to ma;e connections in much

more producti%e and hopeful #ays. Mhat that loo;s li;e is, as of yet, perhapsunthin;able, beyond the edge of our current thin;ing. It is #hat rit4man?!006@ might describe beyond the limits of thin;ability, the place #here ourimagination is constrained by our current mode of thin;ing. Indeed, Deleu4edoes not prescribe a #ay to li%e, but ma;es it clear that #e might do it inmore hopeful #ays.

o !rovide an understanding o( how to achieve di9erence)I o9er the CRI /RIA o( R0C/,,C2A1 A+/&CB whichConnolly e !lained in 5'66 ?Milliam +. VProfessor of Political


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Contention 0ne: he logic o( human rightsclaims are based on a @awed understanding o( the world according to 2niversal Individualism)

ham!ering e9ective action.

A. Human rights discourse !laces the individual as the!rimary unit o( analysis) ma;ing it im!ossible to e !loree9ective grou! action.RamDi=&ogales) 5'6" ?Jaya V(ssociate Professor of 9a# and Co7Director of the Institute for International 9a# and Public PolicyW,B2ndocumented >igrants and the $ailures of 2ni%ersalIndi%idualism, Landerbilt Journal of Transnational 9a#, & Land. J.

Transnat’l 9. )00@

The indi%idualist approach to human rights conceptuali4es the indi%idual asthe primary unit in society. This depiction of social relations is at odds #iththe organi4ational norms of many societies and o3ers an incompleterepresentation of other societies. Indi%idualism o%erloo;s the importance ofgroup identity and solidarity in resol%ing social problems. It also focusesattention on harm to speci5c indi%iduals, obscuring the broader societalrami5cations of %ulnerability. (s a result, human rights approaches mayimpede alternati%e emancipatory strategies that may be more e3ecti%e. n&Ongoing debates o%er cultural relati%ism and human rights suggest that inmany societies, people are conceptuali4ed primarily as members of groups

rather than as autonomous indi%iduals. n&& Though some of these argumentsha%e been crudely framed and contro%ersial, they o3er a deeper truth thatthe indi%idualist focus of human rights la# ignores. This is the socialconstructionist perspecti%e 7 the idea that indi%iduals are autonomous bute ist #ithin concrete social V[ ! W relations that de%elop through continualinteraction. n&6 This conception of society, #hich mo%es us beyond %ie#ingindi%idual human beings as rights bearers and economic actors, createse pectations of mutual interaction and mutual sustenance. n&) (nindi%idualist approach to human rights o%erloo;s the importance andmutually bene5cial nature of such relationships. $or many people, groupidenti5cation is an important component of identity. $or e ample, an

undocumented migrant might %ie# herself as a congregant of an +%angelicalchurch, as a careta;er to her elderly parents or grandchildren, and as amember of a community group that see;s to impro%e the situation ofimmigrants. These group identities may be more important to her than herindi%idual identity, and the relati%e importance of those identities may, ofcourse, shift o%er time. et the atomistic nature of human rights la#prioriti4es her indi%idual attributes, in particular her lac; of la#fulimmigration status, in determining the le%el of protection she should recei%e.


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9egal conceptions that do not match up #ith an indi%idualXs self7conceptionris; undermining the legitimacy of the la#. >oreo%er, such groups areimportant to society in numerous #ays, and human rights la#Xs failure torecogni4e these social ties may damage both the groups and society morebroadly. /rouping is a %ital component of ci%il society. (s indi%iduals cohere

around common beliefs or needs, they form mo%ements that are important inameliorating their condition, the condition of others, and society as a #hole.n& $or %ulnerable indi%iduals, group identity and solidarity may be crucialtools in impro%ing their situation. n&8 (s one person, it may be di cult toma;e oneXs %oice heard, but as a member of a broader coalition, it may bepossible to e press common concerns in the political sphere. The publicpresentation of these concerns may bring for#ard yet more indi%idualsimpacted by them or may help to raise a#areness on behalf of those #ho areunable to do so themsel%es. roader society bene5ts from a robust e changeof ideas and from ensuring that marginali4ed groups are incorporated into thepolitical process rather than being permanently sidelined. 'uman rights la#depicts people as autonomous indi%iduals rather than members of groups?Yundocumented migrantY rather than Ychurch7goer, careta;er, andcommunity acti%istY@, failing to account for social ties in legal decisions that inturn narro# the public discourse.

>. Human rights discourse is based on an assum!tion o(individual ability) which is based on (aulty assum!tionabout movement.RamDi=&ogales) 5'6" ?Jaya V(ssociate Professor of 9a# and Co7Director of the Institute for International 9a# and Public PolicyW,B2ndocumented >igrants and the $ailures of 2ni%ersalIndi%idualism, Landerbilt Journal of Transnational 9a#, & Land. J.


The uni%ersal indi%idualist approach to human rights focuses on indi%idualsrather than political and economic systems, o3ering rights instead ofstructural solutions. This orientation presupposes autonomous and freelyfunctioning indi%iduals e isting on a le%el playing 5eld. et the globaleconomic system is mar;ed by dramatic ine uality. 'uman rights la#Xsemphasis on the indi%idual di%erts attention a#ay from distributi%e ine uities,

thereby increasing the %ulnerability of economically marginali4edpopulations. This prioriti4ation of the indi%idual also mas;s the politicalchoices that underlie both the current human rights system and the currenteconomic structure. It narro#s the debate to focus on particular indi%idualrights rather than critically e amining larger po#er structures and theirbene5ciaries. The case study of undocumented migrants illustrates the #aysin #hich uni%ersal indi%idualism furthers global economic ine uity and beginsto suggest alternate approaches to protecting %ulnerable populations.


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>igration, particularly economic migration, is typically concei%ed of as achoice made by an autonomous indi%idual actor. This is a misconception.n!00 2ndocumented migrants are often trapped in systems of economicdisad%antage that are almost impossible to transcend, #ith fe# options but tomigrate in order to pro%ide basic sustenance for themsel%es and their

families. n"GG ut the global structural economic conditions producing themigrant and their status as undocumented are rarely discussedR both inhuman rights la# and in the public sphere, the focus in determining the%alidity of rights claims is on #hether the migrant is la#fully present. n"G!/lobali4ation, or the Ycloser integration of the countries and peoples of the#orld,Y can be attributed to decreasing costs of communication andtransportation and the dismantling of obstacles to cross7border 1o#s ofcapital, goods, information, and ser%ices. n"G" V[ &6W Though its precisecommencement date is di cult to pinpoint, the pace of economicglobali4ation increased #ith the ad%ent of neoliberal economic policies in the!08Gs. Mhile cross7border mo%ement has become cheaper and faster in theglobali4ed economy, most of the #orldXs population does not bene5t from thesame principles of free mo%ement accorded to capital, goods, information,and ser%ices.


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Contention wo: Immigration relies on the logico( citizenshi!) which ultimately rei?es the

harms it attem!ts to alleviate.A. Citizenshi! as a category is !roduced through theen(orcement o( immigration !olicies.Rosenbloom) 5'63 ?-achel +. V(ssociate Prof. *ortheastern2ni%ersity . Calls (or inclusion in regimes o( citizenshi! are basedon a logic o( inclusion which ultimately rei(y o!!ressivestructures.Chavez) 5'67 ?^arma -. V(ssociate Professor of Communication(rts at the 2ni%ersity of Misconsin, >adisonW B eyond Inclusion:-ethin;ing -hetoric’s 'istorical *arrati%e -uarterly %ournal of

Speech !G!:!R DOI !G.!G8GHGG 6) G."G!6.00&0G8@Citi4enship is the uintessential e ample of this ;ind of inclusionary processthat ser%es not to transform structures, but to enhance them.!0 In discussingthe speci5c instances of amnesty and other e pansions of citi4enship’sparameters, Patchen >ar;ell argues that such e pansions are often %ie#edfrom a uni%ersalist perspecti%e that emphasi4es only their emancipatorypotential.


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0n=Case CardsCA,/ CAR4: A human rights based a!!roach to systems o( ine


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#hy the (rgentine go%ernment has neglected to enact regulations for 9a#"6.8 !. In


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/ tension: 2niversal IndividualismHuman Rights discourses establish a !roblematic view o(universal individualism) ham!ering e9ective changes.RamDi=&ogales) 5'6" ?Jaya V(ssociate Professor of 9a# and Co7

Director of the Institute for International 9a# and Public PolicyW,B2ndocumented >igrants and the $ailures of 2ni%ersalIndi%idualism, ander'ilt %ournal of Transnational &a , & Land.

J. Transnat’l 9. )00@

These #ere noble and ambitious claims. ut has human rightsla# li%ed up to its promises This (rticle ta;es uni%ersalindi%idualism on its o#n terms, measuring its success by thestandards of uni%ersal content and co%erage and indi%idualapplicability that this approach to human rights sets forth. Inother #ords, this (rticle uses the case study of undocumentedmigrants to determine #hether the story that uni%ersalindi%idualism tells about itself is accurate. On paper, manyhuman rights protections apply to all humans, #hether or notthey ha%e la#ful immigration status. ut it is e tremely di cultfor migrants to e ercise these substanti%e rights #hen they canbe discriminated against based on their immigration status anddeported at any time. These %ulnerabilities must 5rst beaddressed so that undocumented migrants ha%e the ability to

claim other rights. n0 International human rights la# o3ersundocumented migrants insu cient protection againstdeportation and discrimination, safeguarding instead so%ereigninterests in territorial control. -ather than protecting the%ulnerable against so%ereign abuses, uni%ersal indi%idualism hasentrenched e isting po#er imbalances. The perspecti%e ofundocumented migrants is not ade uately re1ected in theostensibly shared uni%ersal %alues manifested in current humanrights la#. These failures of protection raise larger uestionsabout the uni%ersal indi%idualist approach to human rights. This(rticle begins #ith a systematic criti ue of the failures ofuni%ersal indi%idualism. The current human rights pro=ectpresents a false uni%ersalism that erases certain forms ofsu3ering from popular discourse. These claims to transcendentuni%ersalism imply that human rights la# is apolitical therebydisguising the political choices that determine its content. 'uman


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rights la#Xs narro# focus on the indi%idual obscures largeruestions of structural ine uality. The indi%idualist approach

presents an atomistic conception of society that o%erloo;s theimportance of social ties and group7based identities. (fter settingout this critical frame#or;, the (rticle describes #houndocumented migrants are and #hich rights and %alues theymight prioriti4e if the uni%ersalist approach #ere to include their%oices. It ne t e plores the contested content of four such rights:the right to territorial security, the right to procedural dueprocess in deportation proceedings, the right to nondiscriminationbased on immigration status, and the right to family unity. Thelatter right is the most #idely a%ailable to undocumentedmigrants, though still limitedR the 5rst is una%ailable in anyforum. The absence of a right to territorial security is particularlyproblematic because it renders V[ G&W undocumented migrants%ulnerable and unable to protect themsel%es against e ploitationand abuse. This (rticle ne t brie1y discusses #hy the uni%ersalindi%idualist approach to human rights has failed to protectundocumented migrants. It suggests that, contrary to commonperception, human rights la# may actually reinforce so%ereigninterests and e acerbate the harmful e3ects of globali4ation on%ulnerable populations. This Part begins #ith a critical history ofthe relationship bet#een human rights and so%ereignty,

highlighting the e%olution of the uni%ersal indi%idualist approacho%er time. It then focuses on the interaction of globali4ation andhuman rights, illustrating the role of global economic ine uity increating migration 1o#s and e plaining ho# the uni%ersalindi%idualist approach furthers this distributi%e ine uality. In the#orld of social =ustice, uni%ersal indi%idualism in the form ofinternational human rights la# has become the hegemon. +3ortsto protect %ulnerable populations begin and end #ith humanrights. Particularly in legal scholarship, strategies to amelioratethe situation of %ulnerable groups outside the scope of humanrights la# focus on ho# that la# might be e tended to co%erthese groups. /i%en the failures of uni%ersal indi%idualism, this(rticle suggests instead other approaches outside of or alongsideinternational human rights la# that might more e3ecti%elyprotect undocumented migrants and other %ulnerablepopulations.


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protecting those outside the scope of human rights la# and caninstead focus their limited resources on the rights of those #hofall #ithin the human rights frame#or;. The legal categories alsocircumscribe the scope of the debate, focusing public discussionaround migrants on uestions of immigration status rather thanine uality and need. The categorical hierarchies created byhuman rights la# impo%erish the imagination e%en of those #hosee; to uphold migrantsX rights. This criti ue does not necessarilylead to an outright re=ection of human rights as a method ofsocial change. The inherent limitations of a rights frame#or;might be moderated through closer attention to concealedcategories and their e pressi%e dimension. In some cases, thepo#er of the la# may be so %aluable in achie%ing certain endsthat it out#eighs the problems of the method. ut those see;ingto ameliorate %ulnerability should approach human rights la# in ameasured fashion, #ith a#areness of its 1a#s and hiddenconse uences.

Human rights based a!!roaches to !roblems ultimatelystrengthen structures o( domination.RamDi=&ogales) 5'6" ?Jaya V(ssociate Professor of 9a# and Co7Director of the Institute for International 9a# and Public PolicyW,B2ndocumented >igrants and the $ailures of 2ni%ersalIndi%idualism, Landerbilt Journal of Transnational 9a#, & Land. J.


(n indi%idualist approach to human rights assumes a #orld ofautonomous indi%idual actors able to access and e ercise rightson an e ual footing. n " This assumption of autonomy fails torecogni4e ine uities in the global distribution of #ealth, po#er,opportunity, and social goods that render the playing 5eldune%en. n In fact, the focus on Ydiscrete and speci5c socialin=usticesY against indi%iduals may ser%e to obscure political andeconomic ine uality on a global scale. n & $rom a more radicalperspecti%e, the indi%idualist focus of human rights has beene uated #ith empire, containing as it does declarations ofe uality #ithin a di3erentiated and hierarchical structure. n 6

The indi%idualist approach of human rights treaties and theirinterpreti%e bodies di%erts attention from their de%elopment andoperation Yin a global conte t #ith large ine ualities of political


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po#er.Y n ) The structure of the indi%idual7rights7based regimeemphasi4es legal sources and a%enues for implementationR larger

uestions about the political and economic roots of ine ualityha%e no V[ !!W place in the analysis. n The indi%idualist focusof human rights la# is also manifested in its prioriti4ing ofnegati%e rights, or rights that re uire people to refrain fromacting in certain #ays, o%er positi%e rights, or rights that re uirepeople to ta;e action. n 8 +3orts to ameliorate structuraline uality #ould re uire concerted action, #hile an indi%idualistapproach to rights is content #ith pre%enting interference #ithindi%idual autonomy. $inally, indi%idualism ele%ates ci%il andpolitical rights, #hich can be e ercised by the autonomous actor,o%er economic and social rights, #hich might open the door toconcerns about distributi%e ine uality. The situation ofundocumented migrants helps to illustrate ho# the indi%idualistfocus of the human rights system distracts the attention andresources of the international community, including human rightstreaty bodies and */Os tas;ed #ith enforcing these rights, a#ayfrom systemic global in=ustice. International human rights treatiesand their interpreti%e bodies ha%e limited the indi%idual rightsa%ailable to undocumented migrants. It is hardly an acceptableresponse #ithin the human rights regime to argue that de%elopedcountries both help to create the conditions that force these

migrants to lea%e their countries in search of #or; and bene5teconomically from their labor. oreo%er, the indi%idualistnature of human rights discourse, unmoored from concerns ofglobal ine uity, enables citi4ens of prosperous nations to percei%eand portray their right to territorial security as a moral


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entitlement #hile denying that right to nonciti4ens, particularlythe undocumented.

Human rights discourses (unction through ob(uscation)and ma;ing claims that will never be achieved.

RamDi=&ogales) 5'6" ?Jaya V(ssociate Professor of 9a# and Co7Director of the Institute for International 9a# and Public PolicyW,B2ndocumented >igrants and the $ailures of 2ni%ersalIndi%idualism, Landerbilt Journal of Transnational 9a#, & Land. J.


The t#in phenomena of uni%ersal and indi%idual rights ha%e a complicatedhistorical record. These ideas radically re%olutioni4ed the relationshipbet#een indi%iduals and the state. et they also entrenched a particularapproach to social change 7 an approach susceptible to co7optation bypo#erful interests anathema to the emancipatory goals of rights regimes.n!08 This subpart e plored the historical origins of the 1a#s of uni%ersalindi%idualism. (s described in greater detail abo%e, the assumption ofuni%ersality is rarely borne out in practiceR cultural di3erences e ist andcannot easily be papered o%er. The scope of uni%ersal rights is ofteno%erstatedR in the %ery instruments claiming uni%ersal applicability,indi%iduals and groups are accorded di3ering le%els of protection. Theprioriti4ation of indi%idual and political rights fails to address systematicallystructural and economic harms. Perhaps of greatest concern, thetranscendent language of uni%ersal indi%idualism disguises its limitations andperpetuation of e tant po#er structures. The ne t subpart e amines furtherthe economic imbalances created by globali4ation, focusing in particular onthe #ays in #hich uni%ersal V[ &&W indi%idualism entrenches the%ulnerability of undocumented migrants.


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Alternatives to Human Rights,ocial movements can mobilize resistance to structures o( o!!ression in an e9ective !olitical manner.RamDi=&ogales) 5'6" ?Jaya V(ssociate Professor of 9a# and Co7

Director of the Institute for International 9a# and Public PolicyW,B2ndocumented >igrants and the $ailures of 2ni%ersalIndi%idualism, Landerbilt Journal of Transnational 9a#, & Land. J.



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instability to prod political elites in migrant7recei%ing states to change theirmigration la#s and policies.

4iscussions about immigration are centrally rooted inracism) and the construction o( a terri(ying Eother.

Chavez) 5''J ?^arma -. VProfessor of Communication and Journalism at the 2ni%ersity of *e# >e icoW B+mbodied Translation: Dominant Discourse and Communication #ith >igrant

odies7as7Te t )o ard %ournal of $ommunication DOI:!G.!G8GH!G)&)! G8G"))&0!"@

The migrant as NNillegal alien’’ is a legal description that gained culturalprominence in the 2nited


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/ tension: Citizenshi! 1ogics >adhe idea o( citizenshi! is intimately connected to the

(ormation o( the nation=state) and seriously limits ourability to understand the world.

Chavez) 5'67 ?^arma -. V(ssociate Professor of Communication(rts at the 2ni%ersity of Misconsin, >adisonW B eyond Inclusion:-ethin;ing -hetoric’s 'istorical *arrati%e -uarterly %ournal ofSpeech !G!:!R DOI !G.!G8GHGG 6) G."G!6.00&0G8@

I don’t #ish to debate -ufo’s and (tchison’s bounded conception of thepolitical, but I do share their concern about the e cessi%e use of and relianceupon citi4enship in -hetoric for #hat it obscures and implies about #hoserhetorical practices are #orthy of engagement, #hose rhetorical practices canser%e as the material basis for our rhetorical theory, and #hat modes ofrhetorical practice as #ell as rhetorical theory and criticism matter. (s I arguein my monograph Eueer >igration Politics, for nearly three decades outsideof -hetoric and for roughly t#o decades #ithin, scholars ha%e identi5ednumerous ;inds of citi4ens that, in some instances, ha%e %ery little relation tociti4enship as a legal designation.0 ( decade earlier, anthropologist (ih#aOng #rote about Bcultural citi4enship, !G a term that, something a;in to(sen’s discourse theory, has become popular shorthand for ci%ic, community,and acti%ist practices that may or may not ha%e anything to do #ith a legaland administrati%e designation.!! Others li;e Toby >iller and -enato -osaldoha%e named se ual citi4enship, social citi4enship, consumer citi4enship, andcosmopolitan citi4enship, among others. The concern in my boo; and here is#ith #hat happens #hen #e situate all sub=ect formation and ci%ic,community and acti%ist practices #ithin the frame#or; of citi4enship, aframe#or; that cannot be di%orced from its connection to state sur%eillanceand control more generally, and its relation #ith the modern nation7statespeci5cally.


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the political as the realm of ?%arious ;inds of@ citi4ens and also only imagineacti%ist and ci%ic practices as those of citi4ens, do #e not preclude the li%es,e periences, and practices of numerous collecti%es and indi%iduals #ho ha%eal#ays engaged in practices that are =usti5ably called rhetorical and political,but that don’t conform to this norm

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