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The Flying Dutchman Asymmetry: The conflict of natural rights in the history of migration law
Uppsala University, Disciplinary Domain of Humanities and Social Sciences, Faculty of Arts, Department of Philosophy. Department of International Politics, University of Wales in Aberystwyth.. (Philosophy of Law)
2016 (English)Conference paper, Oral presentation only (Other academic)
Abstract [en]

In this paper I explain how the now-called asymmetry is about this broader tension between law and morality. The hypothesis laid out in this paper is that what lies at the core of their troubled relationship has to do with a conflict of natural rights which has never been settled in the histories of both legal and political philosophy. My starting point is that while migration rights - namely the right to leave and the right to enter a state - have been theorised in the history of international law and political thought in light of a cosmopolitan (human and natural) right to mobility across the globe, the rights of states to bar immigration is instead seen as a positive artifice, and unnatural manmade creation that violates what would otherwise be the natural state of affairs. This paper historicises this division between a natural right of free movement - on which the so-called ‘asymmetry thesis’ rests - and the supposedly positive right to rule of sovereign states. But as in most cases of intellectual history, the history of philosophy is on its own also a type of philosophical argument. Hence, my historical overview highlights the notions of ‘right’ being employed by authors in their discussion of migration rights, as they seem to inform their views on migration law more generally - especially regarding the question as to whether the correlativity is a legal, a moral or a political problem. Different accounts and usages of rights provide for different theories of migration rights. They make all the difference for thescope and reach of both exit and entry rights in each author or theory, and this paper concludes that the categorisation of the problem as an ‘asymmetry’ has so far only made its way in moral theory, not in legal scholarship.

Place, publisher, year, edition, pages
Lund: Lund University , 2016.
Keywords [en]
Grotius - emigration - immigration - natural rights - sovereignty - international system
National Category
Law
Research subject
Legal History and Sociology of Law
Identifiers
URN: urn:nbn:se:uu:diva-322592OAI: oai:DiVA.org:uu-322592DiVA, id: diva2:1098847
Conference
Higher Seminar in International Law, Faculty of law, Lund University
Available from: 2017-05-26 Created: 2017-05-26 Last updated: 2017-05-30Bibliographically approved

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CiteExportLink to record
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Citation style
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