To a very large extent my task here is far more simple than the General Kuperwasser or Professor Kasher because the legal principles here are very, very clear: Either you have complete sovereignty to do what you want to allow or not allow whoever you want or don’t want to enter your country. This is the basic international principle of sovereignty. You have the full prerogative to close your country, to close your borders; there is no obligation, no legal obligation on any state to open its borders unless of course it takes upon itself the obligation by signing an international treaty or by signing a bilateral agreement. But international law has always from time immemorial for hundreds and hundreds of years—I would even say thousands of years—recognize the fact that a state has absolute sovereignty. However, since the Second World War, and especially since the Vietnam War and and the the the more modern outbreaks of international conflicts, whether between states or between a state and a non-state entity, a terror organization, or whatever, the international community has developed a whole series of moral norms.
And here I come to the Professor Kasher, who referred to these moral norms. And these moral norms are what we what we call human rights, and there have been hundreds and hundreds of conferences and various declarations and instruments and resolutions developing the concept of human rights. In other words, on the one hand, a state has the absolute right to do what he wants; but on the other hand, there are today moral norms that oblige a state to act in a moral manner, even if it doesn’t have to. And this is the the important point that we’re discussing here, because especially in in in the last half-century the movement of people—migrants, refugees, whether voluntary or forced, whether as a result of armed conflict or oppression or voluntarily—has developed and it’s come to a head and we’re seeing it today and this is why we’re sitting here, and has developed a human right of free freedom of movement and protection.
The Canadians took this one step further and they developed this what they call “R2P:” the right to protection. In other words, they, the Canadians, have tried over the years to introduce an obligatory principle, an obligatory duty to protect the weaker people and the right of the weaker people to be protected despite your sovereignty. It hasn’t yet taken on because nothing like this takes on quickly in international law and international practice. But in principle what I’m saying is that there’s a dichotomy between the inherent sovereign right to control territory to control entry into territory and a moral humanitarian imperative to protect human rights and to protect those people but utilize their right to move freely across the globe from one country to another.
What I would add to what Professor Kasher said when he said that zero is not acceptable: in international law zero is acceptable; zero is the norm. It’s not something that is ideal. It’s not something that that most countries would want, but some countries consider it necessary to protect whether it’s to protect their security or to protect their religious framework or any other essential component of their national existence. They have the right to do this. Now as I said, over the years, there have been many, many international instruments and international practice that have been developed that are guidelines. In other words, they’re not obligatory, as I said, unless a state takes upon itself the obligation. But their guidelines regarding the rights of refugees, the rights of migrants, and the duties of those hosting states that choose to accept them, or to help them, to assist them. There’s no one consolidated comprehensive legal instrument or obligatory framework that manages immigration. Over the years there have been many, and I’ve listed in my chapter, in this pamphlet, a series of the most important international instruments that apply.
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Amb. Alan Baker, Director of the Institute for Contemporary Affairs at the Jerusalem Center and head of the Global Law Forum. He served as Legal Advisor and Deputy Director-General of Israel’s Ministry of Foreign Affairs and as Israel’s Ambassador to Canada.
