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Immigration and the Human Rights Discourse: The Universality of Human Rights and the Relevance of States and of Numbers

Published online by Cambridge University Press:  19 March 2012

Ruth Gavison
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Abstract

The main thesis of this Article is that the tendency to sweepingly use the human rights discourse in immigration contexts may be misguided. Moreover, the expansion of the human rights discourse beyond its natural and critical scope may have negative results and encourage states to act in ways that may harm important interests of immigrants. The unsuitability of applying human rights discourse to many of the core issues of immigration policy derives from three main reasons: First, is the immanent tension between the moral claims that rights are universal and apply to all individuals, and the fact that actual protection of human rights is the primary responsibility of states. Second, is the related distinction between the basic recognition of a human right and the processes of identifying the nature and scope of the duties such recognition involves. Third, are the institutional implications of choosing between the human rights discourse and discussion of policy questions. Issues determined by rights that have already been regulated can and should ordinarily be decided by independent courts; while issues of policy, especially ones that involve extensive enforcement and administrative structures, should be debated, resolved, and implemented by political players. While there are important aspects of immigration that do belong to core human rights in the strongest sense, most typical immigration issues are not, at this stage, matters of universal human rights.

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Israel Law Review , Volume 43 , Issue 1 , 2010 , pp. 7 - 48
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

I thank the Minerva Center for Human Rights for financial support and Michal Merling and Yifat Naftali for excellent research assistance. The team of the Refugee Rights Clinic at Tel Aviv University Law Faculty provided extremely helpful insights. Earlier drafts of this paper were presented at the Harvard University Safra Center for Human Values (April, 2, 2008) the Minerva Center on Human Rights and Immigration led by Chaim Gans (June 11, 2008) and the Minerva and the Public Law Human Rights Forum at the Hebrew University (July 21, 2008). I thank participants of all seminars for their useful suggestions and Dr. Na'ama Carmi for a helpful comment at the forum's discussion.

1 See, e.g., the texts dealing with the International Convention on the Protection of the Rights of Migrant Workers and Members of their Families, G.A. Res, 45/158, U.N. Doc. A/RES/45/158 (Dec. 18, 1990) [hereinafter ICRMW], see infra Part III.

2 States are the primary agents interpreting and enforcing rights, although a number of international agencies and NGOs, as well as some regional political unions, exercise some power in these matters. In fact, when these deliberations are made by non-state organs, complex issues of legitimacy and effectiveness may arise. Often, these international bodies allow a significant “margins of appreciation” to states. At present, the activity of such organs does not require a radical modification of the argument presented in the Article.

3 The distinction is not always clear, on many levels. Often, issues of rights are decided in a “political” way, and at times parties and others seek to transform issues which are clearly political into legal questions. The relative realms are thus themselves deeply contested. Nonetheless, the principled distinction is important.

4 The difference between the International Covenant on Civil and Political Rights (Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR]) and the International Covenant on Economic, Social and Cultural Rights (Jan. 3, 1976, 993 U.N.T.S. 3 [hereinafter ICESCR]) is not only in the drafting of the duties correlative to the rights (only the right to elementary education is not left in any way to the discretion of states) and in the very different enforcement mechanisms in the two conventions. It is also reflected in the fact that in the ICCPR there is a clause prohibiting any derogation from some rights, whereas such a clause is absent from the ICSECR. For a general discussion of the relations between CP and SEC rights, see Gavison, Ruth, The Relationships between Civil and Political and Social and Economic Rights, in Globalization of Human Rights 23 (Coicaud, Jean-Marc et al. eds., 2003)Google Scholar.

5 The literature on these subjects is huge. For a general treatment, see the last edition of Henry Steiner and Philip Alston International Human Rights in Context (2007). See also Ruth Gavison, The Constitutional Protection of Human Rights (forthcoming) [in Hebrew].

6 An influential spokesperson for this approach is Dworkin, Ronald, Taking Rights Seriously (1978)Google Scholar and Dworkin, Ronald M., Rights as Trumps, in Theories of Rights (Waldron, Jeremy ed., 1984))Google Scholar. See also Coenen, Dan T., Rights as Trumps, 27 Ga. L. Rev. 463 (1993)Google Scholar.

7 I cannot go here into this fascinating debate which at times took the form of a debate about moral vs. legal rights, but was then seen as applicable to all rights discourse. For a general account of the debate, see, e.g., Kramer, Matthew, Simmonds, N.E., & Steiner, Hillel, A Debate Over Rights (1998)Google Scholar.

8 The success is relative, because unfortunately there are many violations of core human rights around the world. The success, however, should not only be measured by the reduction in violations of human rights. The fact that such violations are now known and often condemned, and therefore that individuals and states now sometimes find them costly, or at least seek to apologize for them or deny their occurrence, is also a success of the HRD.

9 For an account of the relationships between violations of human rights by states and the limits of the right to intervene by force, see, e.g. Walzer, Michael, Thinking Politically: Essays in Political Theory (Miller, David ed., 2007)Google Scholar.

10 See, e.g., Benvenisti, Eyal, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, 102 Am. J. Int'l L. 241 (2008)CrossRefGoogle Scholar; Benvenisti, Eyal & Downs, George W., National Courts, Domestic Democracy and the Evolution of Internarional Law, 20 Eur. J. Int'l L. 59 (2009)CrossRefGoogle Scholar.

11 Another important issue of the HR era not discussed here is the way in which these features contribute to the politicization of the HRD, precisely what was sought to be avoided by the notion of universality. What matters are brought to attention or reported, and what matters are raised and resolved in UN bodies, are questions decided not exclusively by the severity or the clarity of the violations. Moreover, the limits of the effectiveness of the HRD should also be recalled: Mass killings in Rwanda and Darfur were allowed to happen and did not result in effective international intervention.

12 One example close to home is Count Bernadotte's proposal that the General Assembly recognizes he right of refugees from the 1947-48 war to return to their homes, while the famous GA Resolution 194 (U.N. Doc. A/RES/194 (III) (Dec. 11, 1948) does not use the language of rights. This has not ended the debate, however, since Palestinians argue that Resolution 194 does recognize a right of return. Another example is the important differences between the non-binding Universal Declaration of Human Rights (G.A. Res. 217 A(III), U.N. Doc. A/810 at 71 (Dec. 10, 1948) [hereinafter UDHR]) and the ICCPR and ICESCR (supra note 4).

13 The tension is further illustrated by the fact that some provisions cannot be derogated. On one level, these are the most important provisions. It makes sense to single them out for “non-derogability.” But are these provisions binding on states that had not ratified at all?

14 For clear illustrations of both statements in the context of HRD on immigration issues on both the international and the state levels, see detailed discussion in Part III below. The ambivalence does not stem from the claim that some such norms have acquired the status of customary international law. The two approaches are used by people discussing the applicability of the ICRMW to states that have deliberately refrained from becoming signatories. See, e.g., the discussion in the UN Report, infra note 50.

15 These two primary human rights conventions were adopted at the same time. While the UDHR treats CP rights and SEC rights in the same way, the two conventions do not. Furthermore, the conventions are much more detailed and qualified than the UDHR (cf. the concise affirmation of the right to life in Article 3 of the UDHR (supra note 12) with the very detailed formulation in Article 6 of the ICCPR (supra note 3). As between the conventions, the obligation under the ICCPR is to “respect and ensure” the rights in it, while under ICSECR it is to “take steps…to the maximum of its available resources …. with a view to achieving progressively the full realization of the rights …” (Article 2(1) of the two conventions, respectively). For a discussion of the monitoring mechanism and the powers under the optional protocol of the HRC, as compared with the absence of such an optional protocol for the ICSECR, see Steiner & Alston, supra note 5, at ch. 9.

16 Many Bills of Rights in developed countries that had been adopted after the enactment of the ICCPR and ICESCR, such as the Canadian Charter of Rights and Freedoms of 1982 and the UK Human Rights Act of 1998 do not include SEC rights despite the fact that these countries are signatories to the ICSECR.

17 See, e.g., the view presented by Walzer, supra note 9, at ch. 15. See also Gavison, Ruth, Taking States Seriously and the HRD: An Essay in Honor of M. Walzer (forthcoming 2010)Google Scholar.

18 Again, the literature on these subjects is vast. It is suffice to refer the readers to Rosenberg, Gerald, The Hollow Hope: Can Courts Bring About Social Change? (2d ed. 2008)CrossRefGoogle Scholar, in which Rosenberg traces the (in)effectiveness of some famous U.S. court decisions, including Brown (Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and Roe v. Wade, 410 U.S. 113 (1973). See also my book review of the book in The Hollow Hope—Can Courts Bring About Social Change? A Book Review of Gerald Rosenberg's 2nd Edition (2008) 2 Ma-asei Mishpat 15–32 (2009)Google Scholar [in Hebrew].

19 Jensen, Bjorn, Labor Mobility and the Global Economy: Should the World Trade Organization Set Migration Policy?, Am. Friends Ser. Committee 12 (July 10, 2006)Google Scholar. For a general description and sources see also Avineri, Shlomo, Orgad, Liav, & Rubinstein, Amnon, Managing Global Migration: Strategy for Immigration Policy for Israel, (2010)Google Scholar, available at http://www.metzilah.org/English/Immi_Book%20final.pdf.

20 Id

21 Id.

22 For developed countries this is a structural, permanent, challenge. Many developing counties have to deal with very large waves of refugees or people seeking refuge who are escaping civil war or persecution in their own, neighboring countries. At times, these movements are temporary and short, but at times the dangerous situation persists.

23 Dealing with waves of immigration has not been confined to recent decades. The U.S. population was based on such waves of immigration from the start. Most of the colonial powers have had large streams of citizens of previous colonies who moved into the “mother” countries before the rules of citizenship were changed to prevent this. In fact, the intensity of present issues of immigration is often related to the fact that in many countries there already exist large non-assimilated communities, many of whose members enjoy legal status, that attract more immigrants, and thus heighten the sense of threat to the local community and its way of life. Yet, I am concerned with issues of present immigration policy. These background conditions should of course be taken into account.

24 Following the convention, I use “migrant workers” to refer to both people who intend to immigrate on a permanent basis from the start and those who are admitted on a temporary basis only. However, this inclusive definition may be misleading because most asylum seekers and family migrants also seek work and status. A more relevant distinction between migrant workers is the one between those seeking permanent status and those intending to come for a short period.

25 In May 2008, violent riots against foreigners—triggered by a large wave of immigration from Mozambique and Zimbabwe, which was caused by instability and violence in these countries—erupted in various South African locations. See Mozambicans Flee S Africa Riots, BBC News, May 26, 2008Google Scholar, available at http://news.bbc.co.uk/2/hi/africa/7419862.stm.

26 In 2008, the number of immigrants crossing Israel's border with Egypt was over 8000, a significant rise from previous years and a result of developments in African states such as Sudan and Ethiopia, changes in Egyptian policies toward refugees and asylum seekers from such countries, including a trend of returning them to their home countries, and the availability of help in crossing the long land border. See Avineri, Orgad, & Rubinstein, supra note 19.

27 John, Arturo, Family Reunification for Migrants and Refugees: a Forgotten Human Right?, ch.1 Working Paper, Human Right Centre, Coimbra University, 2004Google Scholar, available at www.fd.uc.pt/hrc/working_papers/arturojohn.pdf.

28 For example see research about “marriage of convenience” in Europe: Rude-Antoine, Edwige, Forced Marriages in Council of Europe Member States: A Comparative Study of Legislation and Political Initiatives 22–26 (2005)Google Scholar. See also Rubinstein, Amnon & Orgad, Liav, Human Rights, Security of the State and the Jewish Majority: the Case of Immigration for the Purposes of Marriage, 48 HaPraklit 315, 327 (2006)Google Scholar [in Hebrew]

29 Some countries encourage immigration because they are large and under-populated and require additional population (such as Canada and Australia and the U.S. in the past). Other countries seek immigration because their population is not young enough to support the workload and welfare benefits of the older population as is the case in many countries in Europe. Lastly, some countries encourage immigration to be employed in jobs that the local population either does not want to perform or cannot perform in a competitive manner. These countries often encourage responses to these needs that will not permanently upset the present cultural composition of their society. Some use temporary workers—this has proven problematic in many countries since a large number of these workers usually prefer to remain in that country; others, seek to actively assimilate immigrants into the mainstream culture.

30 These are generalizations which need to be specified. Germany, for example, for years went by jus sanguinis and refused to grant citizenship to labor immigrants and their children, even after they had lived in Germany for years. This policy has become unacceptable, and now Germany has developed a new immigration policy that stresses the willingness of immigrants to integrate into German culture as a condition precedent for immigration. See Weil, Patrick, Access to Citizenship: A Comparison of Twenty Five Nationality Laws in Citizenship Today: Global Perspectives and Practices 17, 25 (Aleinikoff, T. Alexander & Klusmeyer, Douglas eds., 2001)Google Scholar.

31 For example, some countries that had embraced ardent multiculturalism and a generous policy of family unification—allowing immigrants to form non-assimilating communities of various cultures—may now think that adoption of the same has resulted in a loss of civic cohesion that may be threatening the identity, stability, and welfare of the state and its population. For a thoughtful analysis on this subject, see Burama, Ian, Murder in Amsterdam: The Death of Theo Van Gogh and the Limits of Tolerance (2006)Google Scholar.

32 Such conflicts exist not only between local groups and immigrants, but within groups of immigrants themselves. Documented immigrants may resent the prevalence of undocumented immigrants, whose presence in the country may cause them to be suspect and exposes them to searches and suspicion. They may even resent legalization of undocumented immigrants fearing that this might endanger their own hard-won gains. Finally, women in some immigrant communities may resent being forced to marry men from the “homeland” who may not be willing to grant them the liberty and modernity they want to enjoy within the receiving country. Similarly, there may be serious conflicts of interests within receiving countries. Employers may want to use cheap unskilled labor; and those who benefit from this service may push for the increase of this labor force, despite possible damaging implications to the rate of unemployment and minimum pay wages in their own society as well for the civic cohesion of the society in question.

33 Although in the not-too-distant past, some countries refused to let their citizens leave. prohibited them from removing property from the country, and demanded reimbursement of education costs and other benefits that were enjoyed by the immigrants in their country of origin.

34 A major issue is dual citizenship. Previously, many countries voided one's citizenship if she voluntarily applied for a different one, and many countries demanded the revocation of one's previous citizenship upon being naturalized in a new country. Both these arrangements have been relaxed over time. For a systematic analysis, see Zilbershats, Yaffa, The Human Right to Citizenship (2002)Google Scholar; see also Spiro, Peter J., Beyond Citizcnship: American Identity After Globalization (2008)Google Scholar.

35 This is the situation now in some states of the U.S. in relation to Mexican immigration. See Spiro, supra note 34. For an obvious illustration of the fact that these interests and attitudes may in fact be conflicting see the discussion of the history of the ICRMW (infra Part III). The first version, drafted by states of origin, was not seen as acceptable by receiving countries.

36 Former U.S. President Bush had tried to pass an immigration package including a broad legalization component, but the program was defeated in congress. See Vote Dashes Bush Immigration Plan, BBC News, June 29, 2007Google Scholar, available at http://news.bbc.co.uk/2/hi/americas/6250756.stm.

37 This is even more so in countries that grant citizenship—at once or at maturity—to anyone born within the country (i.e., France and the U.S.).

38 The main catch concerning the work conditions of undocumented migrant workers stems from the fact that there will always be illegal migrants. If the effective cost of hiring them becomes higher, the demand for their services will be reduced. But since these workers are desperate for work, the supply side will ultimately capitulate first and migrants will be forced to offer their work for less to find jobs at all. To learn more about the ICRMW and undocumented migrants, see Bosniak, Linda S., Human Rights, State Sovereignty and the Protection of Undocumented Migrants under the International Migrant Workers Convention, 25 Int'l Migration Rev. 737 (1991)Google Scholar.

39 UDHR, supra note 12, pmbl., art. 2, 1 2; ICCPR, supra note 4, art. 12(2).

40 ICCPR, supra note 4, art. 12 (4) provides: “No one shall be arbitrarily deprived of the right to enter his own country.” It is clear that exercising this right depends upon interpretation of the phrase “his own country,” which is laid out by the U.N. Human Rights Committee in CCPR, General Comment No. 27: Freedom of Movement (art. 12) U.N. Doc. CCPR/C/21/Rev.1/Add.9 (Nov. 2, 1999).

41 I do not want to create the impression that in premodern times people did not migrate. Jews were in fact quite good at it. Even moves from less developed into more developed parts of the world were common. For a fascinating historical study, see Macklin, Audrey, Historicizing Narratives of Arrival: The Other Indian Other, in Storied Communities: Narratives of Contact and Arrival in Constituting Political Community (Lessard, Hester, Johnson, Rebecca, & Webber, Jeremy eds., forthcoming 2010)Google Scholar.

42 Infra note 46.

43 Id.

44 International Convention on the Elimination of All Forms of Racial Discrimination (Dec. 21, 1965) 660 U.N.T.S. 195.

45 ICRMW, supra note 1.

46 In this Article, I do not concentrate on any particular state since its thrust is general and theoretical. However, while there are many similarities in the manner in which receiving states handle immigration issues, there are also many important differences; thus, a study of the issue of immigration must attend to specific details in the relevant country. In fact, if this modest claim is accepted than acceptance of my main contention—the HRD cannot, on its own, determine immigration policies—is not far behind.

47 United Nations Convention Relating to the Status of Refugees, art. 33, July 28, 1951, 1989 U.N.T.S. 137. The Convention is yet another illustration of the complexity of the HRD in the context of rights of aliens. Refugees have rights not to be sent back to where they face the risk of death or.

48 The International Labour Organization (ILO) was founded in 1919 as part of the Treaty of Versailles. In 1964, the ILO became the first UN specialized agency; its main aims are to promote work-related rights, encourage decent employment opportunities, enhance social protection, and strengthen dialogue in handling work-related issues. For further information, see the ILO official site http://www.ilo.org/global/lang--en/index.htm (last visited Apr. 16, 2010).

49 Misra, Neha, Perspectives on Migration, Labor & Globalization: The Push & Pull of Globalization: How the Global Economy Makes Migrant Workers Vulnerable to Exploitation, 14 Hum. Rts. Brief 2 (2007)Google Scholar; Jensen, supra note 19.

50 U.N. Econ. & Soc. Council, Sector for Social and Human Sciences, The Migrant Workers Convention in Europe: Obstacles to the Ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families: EU/EEA Perspectives, U.N. Doc. SHS-2007/WS/7 – CLD 1195.7 (2007) (prepared by Euan McDonald & Ryszard Cholewinski) [hereinafter The UN Report].

51 See http://www2.ohchr.org/english/bodies/ratification/13.htm (last visited Apr. 17, 2010).

52 Perhaps with the exceptions of Argentina and Libya, which is also becoming an important transit country for irregular migrants from sub-Saharan Africa traveling to Europe. Mexico and Morocco increasingly receive migrant workers and are also significant transit countries. See Cholewinski, Ryszard. The Human and Labor Rights of Migrants: Visions of Equaliy 22 Geo. Imm. L.J. 177, 187 (2008)Google Scholar.

53 Part III of the ICRMW can be roughly divided into 3 categories: First, the group of basic rights that already exist in the different human rights convention, e.g., the right of life. Second, general rights that had been fitted to vulnerability of the foreign worker. Third, is the group of specific rights that were created especially for the needs of the migrant workers, e.g., Article 23. Regardless that they are very specific, these rights too are human rights.

54 See ICRMW, supra note 1, art. 44(2). I return to this section below. There are conflicting interpretations of this section among NGOs. The section itself states:

1. State parties, recognizing that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state, shall take appropriate measures to ensure the protection of the unity of the families of migrant workers.

2. State parties shall take measures that they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their spouses … as well as with their minor dependent unmarried children.

3. States of employment, on humanitarian grounds, shall favorably consider granting equal treatment … to other family members of migrant workers.

Note that this section is not written in the language of rights and obligations at all.

55 Granting this wide range of rights to the documented immigrants de facto equalizes their situation to the status of the residents in the states of employment. Note that these benefits do not depend on the length of stay of the migrant worker in the receiving country nor on the answer to the question is her status temporary or permanent.

56 The UN Report, supra note 50.

57 Id. at 88.

58 See Hanny Ben Yisrael & Oded Feller, No State for Love: Violations of the Right to Family of Migrant Workers, available at http://oded.feller.googlepages.com/NoStateForLove.pdf (last visited Apr. 18, 2010); see also HCJ 11437/05 Kav LaOved v. The Interior Ministry (the petition filed by human rights organizations is currently pending before the High Court of Justice).

59 The “Information Kit on the United Nations Convention on Migrants Rights” briefly refers to the interpretation of ICRMW, but focuses mainly on providing a background of the Convention and the obstacles to ratification. See International Migration Programme, http://portal.unesco.org/shs/en/files/3454/11401039211English_Kit.pdf/English%2BKit.pdf (last visited Apr. 18, 2010). For example, it determines that “the Convention does not create new rights for migrants but aims at guaranteeing equality of treatment and the same working conditions for migrants and nationals.” Id. at 7. We saw that this may not in fact be the case.

60 I am not referring here to a decision by the HRC that a country did not act legally according to its own legal system. This is a far reaching statement because states' courts enjoy finality within the system and there is a strong presumption that they know best how to interpret the laws of the state. Nonetheless, a decision of this sort allows the state to change its practices so that they are seen as corresponding to its own laws. My observation relates to a situation where the HRC determines that a state's law is “unconstitutional” in terms of international HR law.

61 Stewart v. Canada, Communication No. 538/1993, U.N. Doc. CCPR/C/58/D/538/1993 (1996).

62 A detailed discussion of the interpretation of “his country” in Article 12 goes beyond the scope of this Article. The Stewart decision provides a good discussion. See also HRC, General Comment No. 27, supra note 40.

63 Winata v. Australia, Communication No. 930/2000, U.N. Doc. CCPR/C/72/D/930/2000 (2001).

64 For further reading on the subject, see Joseph, Sarah, Human Rights Committee: Recent Cases, 1 Hum. Rts. L. Rev. 305, 313–18 (2001)Google Scholar, and see also Burchill, Richard, The Right to Live Wherever You Want? The Right to Family Life Following the UN Human Rights Committee's Decision in Winata, 21 Netherlands Q. Hum. Rts. 225 (2003)CrossRefGoogle Scholar.

65 They also tended to think deportation was not an “interference” under the convention, because the unity of the family was not threatened by it. A strong case was also made that this decision may in fact cause a backlash by leading states to be much more intrusive in looking for illegal immigrants.

66 Australia's response does not decide the issue, but the state informed the HRC that it did not change it laws because it found the dissent more persuasive. Australia's response highlights another important feature of international HR law—views of the HRC are recommendations and not binding decisions.

67 Law of Return, 1950, 51 S.H. 159.

68 An exception to this rule is the case of refugees or asylum seekers, in which the norms of international and national law are supposed to complement each other.

70 Citizenship and Entry into Israel (Temporary Order) Law, 2003, S.H. 544. 2

71 HCJ 4542/02 Kav Laoved v. The Government of Israel [Mar. 30, 2006] (unpublished). For an English translation see 1 Isr. L. Rep. 260 (2006).

72 In some branches, such as carers, workers are now attached to special manpower companies that are licensed by the state and ensure the rights of the workers are respected. Workers keep their own passports and are free to ask to change the employers if there is no suitability. However, in other branches de facto attachment to employers still obtains.

73 Since the day of the original opinion, HCJ 4542/02, in March 2006, the Israeli Supreme Court issued 15 orders, the most recent of which dates from the Dec. 3, 2009, available at http://elyon1.court.gov.il/verdictssearch/HebrewVerdictsSearch.aspx.

74 For a discussion of the contribution of courts to the development of immigration policies see Sitbon, Ofer, The Role of Courts in Israel and France in Designing the Policy toward Migrant Workers, 10 Mishpat Umimshal 273 (2006)Google Scholar. The issue is of course of general relevance. See Rosenberg, supra note 18.

75 See Kav LaOved v. The Interior Ministry, supra note 58.

76 See AA (Administrative Appeal) 86930/2005 The State of Israel v. Elizabeth Doucha [2005].

77 AA 2190/06 The State of Israel v. Bueno Gemma [2008].

78 See Rubinstein & Orgad, supra note 28.

79 A brief introduction of the history of the Israeli law is necessary. Section 7 of the Citizenship Law (Nationality Law, 1952, S.H. 146) creates a special arrangement for spouses and family members, explicitly exempting them from some of the regular conditions of naturalization under Section 5. However, the decision itself was still seen to depend on the discretion of the Minister of Interior: HCJ 3648/97 Stamka v. The Minister of Interior [1999] IsrSC 53(2) 728 changed this and declared a duty to grant all such applicants a gradual naturalization process. Thus the arrangement limiting discretion in such cases is in fact judge-made (the Court in Stamka also voided a policy that required alien spouses staying in the country illegally to leave the country in order to have their application reviewed). The law on family immigration in Israel must now be read against the background of the Family Unification case—HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. The Minister of Interior [May 14, 2006] (unpublished)—in which a debate developed on just this point. A large number ofjudges opined that in Israel there is a constitutional right to family life that includes the right of citizens to naturalize their spouses (subject only to individualized inquiries). The law limiting the rights of Israelis to grant status in Israel to spouses from the Occupied Territories was nonetheless upheld in a narrow six- to-five decision. A petition over a slightly modified law is now pending again in the HCJ. See Rubinstein & Orgad, supra note 28; and see also for the contrary view, Saban, Ilan & Medina, Barak, Human Rights and Taking Risks: on Democracy, Ethnic tests and the Limitation Clause”- Following the Opinion re The Entrance and Citizenship Law, 39 Mishpatim 47 (2009)Google Scholar [in Hebrew].

80 See, e.g., the debates in Denmark, The Netherlands, and in the U.S. The U.S. maintains the principle of family immigration and this route of immigration represents the highest among immigration routes in the country. The only conditions for the sponsorship of immediate relatives are that the sponsor can support the relative in question. The U.S. does not allow this mechanism for illegal immigrants. In both The Netherlands and Denmark, lenient immigration policies for relatives were replaced by stringent requirements. See the terms for granting a visa to family members of U.S. citizens at the U.S Citizenship and Immigration Services website, http://www.uscis.gov/portal/site/uscis. “New to Denmark,” the official portal for foreigners and their integration lists the requirements for family reunification in Denmark, http://www.nyidanmark.dk/en-us/coming_to_dk/familyreunification/family_reunification.htm. See also A Test for the Migrant to The Netherlands, Ynet, Mar. 12, 2006, available at http://www.ynet.co.il/articles/0,7340,L-3226536,00.html [in Hebrew].

81 For the application of the ICRMW's provisions to Israel by NGOs, see Ben Yisrael & Feller, supra note 58.

82 See the case reported in laissez passer on December 14, 2007, http://www.mehagrim.org/2007/12/blog-post_14.html. Rubinstein & Orgad also document the claim that the abuse of marriage as a means to migrate to developed countries, led many countries to tighten the conditions of family's immigration (supra note 28). For more about the different approaches to regulation of migration, see Brendan Mullan, The Regulation of International Migration: The United States and Western Europe in Historical Comparative Perspective (Institute for Public Policy and Social Research & Michigan State University). See also Ben Yisrael & Feller, supra note 58, on changes in policy preventing women who gave birth to send the child away and stay here to work, based on the understanding that this coerced separation is too harsh and may not withstand public and judicial review.

83 See, e.g., AppPet (Jerusalem) 735/03 Chan de ho v. The Minister of Interior (unpublished) [July 17, 2003].

84 See, e.g., HCJ 4370/01 Lafka v. The Minister of Interior [2003] IsrSC 57 (4) 920.

85 See Guiraudon, Virginie, Citizenship Rights for Non-Citizens: France, Germany and the Netherland, in Challenge to the Nation-State 272 (Joppke, Christian ed., 1998)CrossRefGoogle Scholar.

86 Cyrus, Norbert & Vogel, Dita, Germany, in Current Immigration Debates in Europe: A Publication of the European Migration Dialogue, (Niessen, Jan, Schibel, Yongmi & Thompson, Cressida eds., 2005)Google Scholar.

87 Carmi, Na'ama, Immigrarion Policy, 2 L. & Ethics Hum. Rts. 387 (2008)Google Scholar, may be read as another illustration of the same structure, this time via Article 27 of the ICCPR (repeated as we saw in ICRMW) concerning the rights of immigrants to culture. The article refers to the challenge to the state when mass immigration could change the relation existing between majority and minority groups within the state, and accordingly affect the culture of the state. Under these circumstances, Carmi argues that the duty of states under international human rights law to protect rights of minority groups might serve as an incentive to restrict immigration endangering the character of the state. For a powerful analysis of the fact that rights of immigrants in the democratic West have been more vulnerable to contemporary trends than rights of national minorities (or of indigenous peoples), see Kymlicka, Will, Multicultural Odysseys: Navigating the New International Politics of Diversity (2008)Google Scholar.

88 See Current Immigration Debates in Europe: A Publication of the European Migration Dialogue, supra note 82.

89 See the candid and sharp discussion of Bhabha, Jacqueline, Internationalist Gate Keepers: The Tensions Between Asylum Advocacy and Human Rights, 15 Harv. Hum. Rts. J. 151 (2002)Google Scholar, describing such tensions in the work of advocates for seekers of asylum.

90 In many Western countries, domestic law does grant people some rights irrespective of their status. These rights of course apply to all immigrants in that country. But the scope of these rights may be amended by the state (although within constitutional or regional constraints that might limit such changes).