Exclusion and standard prerogatives of sovereignty
The objective of the following chapters is to challenge the inherent sovereign power rule from the legal perspective. In this particular chapter we will try to come up with arguments directly derived from positive law. So, we will try to stay as close as possible to the standard sources and reasoning used by practicing lawyers. By the same token, if the inherent sovereign power rule is a rule directly related to the notion of sovereignty, we are faced with an insurmountable obstacle. For of all legal and political notions sovereignty is perhaps the most controversial: sovereignty is either redundant or incoherent. 1 The argument for redundancy claims that sovereignty is outdated. The argument for incoherence asserts that sovereignty is confused, if not contradictory. 2
This chapter will largely circumvent the controversy. First, it neither challenges nor justifi es the notion of sovereignty. It argues that the notion of sovereignty cannot account for the power to exclude without justifi cation. To make this claim one need not challenge or justify the notion of sovereignty. We may simply deny that a particular notion ( in casu sovereignty) does comprise a certain property ( in casu the power to exclude without justifi cation). This claim does not presuppose a full account of the notion itself. In addition, for the purpose of explaining a notion it often is of little help to state the properties that are not comprised in the notion. Second, the controversy is largely an academic one, which concerns primarily political scientists, political theorists and legal philosophers. Most legal practitioners are rarely bothered by the conceptual problems provoked by sovereignty, or in any event, sovereignty is not specifi cally more problematic than other legal concepts. The reason is that the issue of sovereignty rarely makes it to court and if it does, it is often a very technical and legalistic matter (e.g. border disputes, economic zones, etc.). In such cases the concept of sovereignty is not so much at stake, but rather the distribution of the advantages associated with sovereignty. Third, and most importantly, the structure of sovereignty has little to do with the relationship between state and a normal migrant seeking admission. So in a way
the problem is not sovereignty. What is at stake is the belief that sovereignty can account for a state’s power to exclude migrants without justifi cation.