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The Movement of Persons Across Borders.

As borders become both more and less important in the increasingly interdependent world order, there is a heightened necessity for a set of rules governing the flow of humankind across borders. It is estimated that on an average day, 7 million people move across national borders, and that by 1992 approximately 17 million people sought refuge in foreign nations. The Movement of Persons Across Borders is a condensed version of an overview and analysis of the generally accepted principles and rules of international law relating to the movement of persons across national borders. The study has three main objectives: to be ideologically neutral and truly international in character; to be accessible to a broad audience, from private citizens to politicians to international lawyers and scholars; and to contribute to the development and codification of international law -- also a major goal of the ongoing United Nations Decade of International Law.

The authors achieve the last two goals, but it is arguable whether it is even possible to produce an ideologically neutral set of rules that refer to the notion of the nation-state, with all the baggage that accompanies that concept. Nevertheless, 38 people from 22 countries, all eminent in the field of international law, produced a set of 18 rules governing the movement of persons across borders. Each of the rules is accompanied by an explanation of its sphere of applicability and a description of the sources on which the rule is based. In light of the fact that international law is a dynamic system developing at a rapid pace, evaluating evidence for the existence of a particular rule would always be challenging. The group established a hierarchy, with widely ratified treaties and unanimously adopted codifying instruments at the pinnacle of the pyramid and scholarly literature at the bottom.

The monograph deals principally with some of the basic principles and rules that ought to apply in time of peace, and this should not be regarded as a drawback. Although the rules deal with the nationalist construct of nation-states, from a human rights perspective the rules seem to lean toward the idealistic end of the practicability-idealism continuum. This is laudable and were these rules adopted, certain hardships human beings presently suffer might decrease significantly.

This study is the first of its kind in this area of the law, and like almost anything Louis Sohn and Thomas Buergenthal, two distinguished international scholars and editors, produce, it is a success. The American Society of International Law, composed of leading scholars and practitioners of international law, is to be commended for its effort to organize and publish the study.

The 18 governing rules proposed are styled in the broad terms more often found in constitutional documents than legislative enactments. They are divided into four parts. Part I deals with the rights and duties of States in relation to the movement of persons across borders generally. The rules providing for the admission and exclusion of persons are dealt with in some detail in Part II, while the rules contained in Part IIII focus on the special problems of refugees and displaced persons. Part IV deals with international organizations and their role in protecting the rights of people moving across borders.

Rule 1 is the base upon which the other rules are developed, and it is worth noting that open borders are not suggested. Rather, the study posits a limited right of States to control human movement across their borders. Four additional rules complete Part I and consist of general provisions protecting the civil and political rights of persons moving across borders. The principle of non-discrimination is required of states, in the sense that they may not enact legislation which is per se discriminatory or is capable of being applied in a manner which would have the effect of discriminating on the ground of race, sex, language, religion, color nationality or other status, without some rational basis for the differentiation relevant to a specific purpose.

The seven rules contained in Part Il deal with the admission and exclusion of persons attempting to move across borders. The principal provision is that all nationals of a state have the right to enter its territory. Family unity must be respected in a state's policy regarding the admission of aliens into its territory, and those aliens suspected of being involved in terrorism or drug trafficking or suffering from a contagious disease may be refused admission. Part III's four rules deal with the refugee and displaced persons problem which confronts humanity at the close of the twentieth century. A refugee is defined here as a person who is no longer under the protection of the State of his or her nationality, while the provisions relating to the rule of non-refoulement set out in article 33(l) of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol have been incorporated. The rules in this part stress the importance of internationally recognized human rights and are to be admired. Interpretation of the rules is the critical element determining whether a particular person's rights are respected. In this regard it is worth noting that the U.S. Supreme Court in its 1993 Haitian Interdiction opinion seems to have neglected taking these protections into account when interpreting the analogous provisions. The commentary following each rule provides a positive basis for the protection of human rights. The concluding two rules focus on the role of the United Nations and other international organizations in protecting persons who cross borders. The United Nations High Commissioner for Refugees (UNHCR) ought to play a prominent role in any discussion of this nature, and the rules emphasize this.

The rules, read with the attached commentaries, are sufficiently comprehensive to provide an adequate basis for the protection of human rights in a field that, until recently, has been largely ignored. No geographic bias appears in the rules, in that problems and solutions in all areas of the world have been taken into account in the formulation of the rules. The language used in the rules, as well as the commentaries, ensures their accessibility to the intended readership: policy makers, members of the media, judges, scholars and concerned citizens. The rules and commentaries provide a complete understanding of the basic international law governing the movement of persons across borders, and are accordingly welcomed.
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Author:Katz, Anton Farrel
Publication:Journal of International Affairs
Article Type:Book Review
Date:Jan 1, 1994
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