Why human rights fail to protect undocumented migrants

European Journal of Migration and Law

Volumn 12, Issue 2, 2010, Pages 241-242

  Noll, Gregor ^a  

^a LUND UNIVERSITY   (Sweden)

Author keywords

human rights; international law; oikos; polis; slavery; Undocumented migrants

Indexed keywords

EID: 77956384014     PISSN: 1388364X     EISSN: 15718166     Source Type: Journal    
DOI: 10.1163/157181610X496894     Document Type: Article

References (98)

1. In an international law context, such universality could be expressed as follows. Human rights provided for in international legal norms are universal if and only if every human present on state territory or within state jurisdiction is protected by such rights, or being able to effectively claim protection. In this text, I disregard from the situation of human being outside state territory and jurisdiction and also from what could be loosely termed human rights provision through actors other than states, such as private persons, NGOs or state agents acting ultra vires.
2. Within political theory, a debate on the "right to have rights" has challenged the very universality of human rights protection, typically drawing on the example of the stateless person or the refugee. problematized claims of an universal entitlement to human rights regardless of civic membership. A widely accepted point of departure for this debate is Hannah Arendt's The Origins of Totalitarianism (Cleveland: Meridian, 1958).
3. Within human rights law, however, existing studies verge towards the collection of evidence on the position of undocumented migrants and its analysis as potential violations of states' obligations under human rights law. While political theory often comes across as dystopian, taking an interest in the persistent discrimination of the undocumented migrant, human rights lawyers never seem to stop making gestures towards a universal application of the hard law of human rights, with an at times surprising neglect of formal impediments.
4. With the term "exclude", I refer to the formal denial of single rights (as e.g. The right to health) as well as to removal from state territory, e.g. by way of expulsion, which denies a whole bundle of rights.
5. "Human rights claims" denotes the potentiality of benefits flowing from obligations under international human rights law.
6. Article 2.1 of the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, reads as follows: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. Read in conjunction with articles 2.3 and 4, this implies that there is an obligation to provide for the rights enunciated in the Covenant at a level less than full from the moment the Covenant binds a state. This obligation is "immediately applicable", while the obligation to fully realize recognized rights emerges gradually over time and is contingent on "available resources".
7. One oft-invoked example of a temporalization of human rights is when undocumented migrants perseverance in legal limbo because they hope that their children might be able to access human rights in the long run. Access to education plays a central role both for undocumented migrants and for domestic policy makers, generating legislation and court cases. In Plyler v. Doe, the U.S. Supreme Court struck down Texas legislation barring access to high-school education for undocumented migrant children. 457 U.S. 202 (1982). The 2008 South California Illegal Immigration Reform Act makes aliens unlawfully present ineligible to attend higher education in the state. 2008 S.C. Acts 280 (2008), ? 17.
8. Here are two examples for the role played by spatiality. Is it appropriate that police officers seek out undocumented migrants in places of worship? Should school premises shall be pacified from police seeking to implement detention and removal orders. The latter issue was discussed in a Swedish Governmental Inquiry into the right to education for children lacking residence permit (SOU 2007:34). The Inquiry Committee stated that there was no practice of police raids at school premises in search of undocumented migrant children, why there was no imminent need to curtail the competence of police authorities to access school premises. SOU 2007:34, Skolg?g fbarn som skall avvisas eller utvisas (Stockholm: Fritzes, 2007), p. 206.
9. Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3.
10. New Zealand, Reservations, 6 April 1993.
11. Germany made the following declaration upon ratification: Nothing in the Convention may be interpreted as implying that unlawful entry by an alien into the territory of the Federal Republic of Germany or his unlawful stay there is permitted; nor may any provision be interpreted to mean that it restricts the right of the Federal Republic of Germany to pass laws and regulations concerning the entry of aliens and the conditions of their stay or to make a distinction between nationals and aliens. Germany, Declarations, 6 March 1992 The relevant part of the UK's reservation upon ratification reads as follows: c) The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time. Reservations by the UK, 16 December 1991. On 18 November 2008, the UK Government informed the Secretary-General that it wished to withdraw this reservation in respect to the territory of the United Kingdom, but emphasised its continued applicability to dependent territories.
12. Belgian Interpretative Declarations, 16 December 1991, para. 1.
13. This question can attain a surprising complexity. Let us assume that Anna and her parents stay in Hamburg, Germany. Section 87 of the German Law on Residence, Labour and Integration of Foreigners on Federal Territory (Gesetz ?er den Aufenthalt, die Erwerbst?igkeit und die Integration von Ausl?dern im Bundesgebiet, 30 July 2004 BGBl. I p. 1950) obliges all authorities to report the presence of an undocumted migrant to the aliens authorities. From this, it would seem to follow that a school would be obliged to reveal the presence of an undocumented migrant child to the local aliens authority. However, in a number of interpretive moves by the Hamburg authorities, it has been established that questions related to the existence of a residence permit are beyond the official competence of schools. Therefore, schools in Hamburg have no reporting obligations, which would seem to be an interpretatio contra legem to any outsider. This must be extremely confusing for any undocumented migrant assessing the risks accruing from his or her child's presence at school. D. Vogel, M. Assner, E. Mitrovic and A. K?ne, Leben ohne Papiere: eine empirische Studie zur Lebenssituation von Menschen ohne g?tige Aufenthaltspapiere in Hamburg. Eine Feldstudie im Auftrag des Diakonischen Werks Hamburg (Hamburg: Diakonie Hamburg 2009). Available at http://www.diakonie-hamburg.de/ fix/files/doc/Leben-ohne- PapiereLF.pdf.
14. Bankovic and Others v. Belgium and Others, Judgment of 12 December 2001, Appl. No. 52207/99, Reports of Judgments and Decisions 2001-XII, para. 59. Drawing primarily on examples of domestic jurisdiction issues, Ford concludes that "territorial jurisdiction categorizes the elements over which authority is to be exercised primarily by area, and secondarily, if at all, by type". R.T. Ford, 'Law's Territory (A History of Jurisdiction)', 97 Michigan Law Review (1999), pp. 843-930, at p. 852.
15. I am not entirely happy with this dichotomy, because the delimitation of welfare benefits vis-?vis migrants could be said to engage as much welfare jurisdiction as it engages immigration jurisdiction. Linda Bosniak presents this problem through two type-cast positions. One is supporting convergence, that is, being "hard outside and hard inside"; the other implies believing in separation, that is, being "hard outside, soft inside". "For the convergence advocates, boundaries act legitimately on the inside as well as at the border, whereas for the separationists, those boundaries must be confined (more or less) to the territorial frontier." L. Bosniak, Citizens and Aliens: Dilemmas of Contemporary Membership (Princeton: Princeton University Press, 2006), p. 123. She remains sceptical towards both positions, because, "[u]nder real world conditions, border and interior are inevitably imbricated, most directly and graphically in the person of the alien". Ibid., p. 124.
16. The ECtHR has declared in ?onka v. Belgium that Belgian authorities were in violation of the ECHR when they lured a group of undocumented migrants to the premises of the authorities under a false pretext to then detain them as part of deportation proceedings. The Court's position obviously revolves around the issue of wilful deceit. There is no indication whatsoever that it would be denying ECHR rights to detain and remove an undocumented migrant who reports to the authorities by her own will and on the basis of her own calculations on the risks entailed by contacts with the authorities. In all, this position would seem to endorse a liberal image of the undocumented migrant as a rational actor. The state is prohibited to tamper with her will-formation by providing false information. Over and above that, ?onka v. Belgium does not do very much for our question of jurisdiction. ?onka v. Belgium, 5 February 2002, ECtHR, Appl. No. 00051564/99.
17. See article 2 CRC.
18. See Section 2 supra.
19. With its ballistic mode of thought, this could very well be a loan from Newtonian physics. I. Kant, Zum ewigen Frieden: ein philosophischer Entwurf (Frankfurt: Reclam, 1984) [1795]
20. Translation in W. Schwarz, Principles of Lawful Poltics. Immanuel Kant's Draft Toward Eternal Peace (Ahlen: Scientia, 1988).
21. H. Arendt, On Revolution (London: Penguin, 1990) [1963], p. 275. Carl Schmitt accords the Greek verb nemein - the taking of land, or, in German, Landnahme - priority before the emergence of the nomos
22. C. Schmitt, 'Nomos-Nahme-Name', in C. Schmitt, Staat, Grossraum, Nomos: Arbeiten aus den Jahren 1916-1969 (Berlin: Duncker & Humblot, 1995), pp. 573-91, as quoted in Lindahl, infra note 22, p. 901, note 32.
23. Consider Schmitt's conception of the partisan, whom he endows with a specific linkage to the land defended against the foreign occupant (which he describes as the partisan's tellurian character). C. Schmitt, Theorie des Partisanen, Zwischenbemerkungen zum Begriff des Politischen (Berlin: Duncker & Humblot, 1963), pp. 26-7
24. Also, Schmitt's major post-1945 treatise is quite openly premised on the intrinsic justice of Mother Earth, justissima tellus. C. Schmitt, The Nomos of the Earth in the International Law of the Jus Publicum Europaeum (New York: Telos Press, 2003) [1950], p. 42.
25. H. Lindahl, 'Give and take: Arendt and the nomos of political community', 32 Philosophy & Social Criticism (2006), pp. 881-901.
26. Lindahl, supra, p. 885.
27. Ibid., pp. 886-887.
28. Ibid., p. 887.
29. Ibid,.
30. The confirmation that Anna "must be" on Swedish territory expresses what we might call a geographic normativity, but it concurrently makes a tacit reservation about the legal-political normativity.
31. Ford, supra note 14, p. 853.
32. Ibid., p. 905.
33. Against this, one may object that if the poltical derives from the polis, then we cannot use our understanding of the political to explain the polis. S. Elden, 'Rethinking the Polis. Implications of Heidegger's questioning the political', 19 Political Geography (2000), pp. 407-422, at p. 413.
34. M. Heidegger, 'Building, Dwelling, Thinking', in M. Heidegger, Poetry, Language, Thought (New York: Harper Collins, 2001) [1971], pp. 141-160, at p. 153.
35. M. Heidegger, Hölderlin's Hymn "The Ister" (1996), p. 100, as quoted by Elden, supra note 30, p. 413. The original's Greek term has been transcribed as polis.
36. Heidegger supra, p. 100. Elsewhere in this issue, on pp. 173-191, Markus Gunneflo with Niklas Selberg draw on Ranciére's paradox of human rights: "the Rights of Man are the rights of those who have not the rights that they have and have the rights that they have not." J. Rancière, 'Who Is the Subject of the Rights of Man?', 103 South Atlantic Quarterly (2004), p. 41. There is an intriguing overlap in the Heideggerian conception of the political as the uncanny and most worthy of question and the paradoxical expression this finds in the Rancièrian dictum.
37. Ford, supra note 14, p. 844.
38. S. Legomsky, 'Portraits of the Undocumented Immigrant: A Dialogue', 44 Georgia Law Review (2009), pp. 65-160.
39. R. Esposito, Communitas (Stanford: Stanford University Press, 2010), p. 3.
40. Esposito, supra, p. 7. In Legomsky's piece, supporters of the lenient approach, although they stress residency and the "moral rights" accruing from it, end up in a tragic reconfirmation of sovereignty. Therewith, they happen to reconfirm the hardliners' conception of community as well. Legomsky, supra note 35, p. 73.
41. J.-L. Nancy, 'Is Everything Political?', 2 CR: The New Centennial Review (2002), pp. 15-22, at p. 17.
42. Y. Rotman, Byzantine Slavery and the Mediterranean World (Cambridge: Harvard University Press, 2009), p. 130.
43. International Convention on the Protection of the Rights of All Migrant Workers and their Families, 18 December 1990, entry into force 1 July 2003, G.A. res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990). At the time of writing, the number of parties was at 42 as of 3 February 2010, which is a telling contrast to the 193 parties to the CRC.
44. At the time of writing, European parties to the CMW are Albania, Bosnia and Herzegovina and Turkey. All three are predominantly sending countries, which have significant stocks of expatriates on foreign labour markets.
45. Neither individual nor inter-state complaints can presently be considered by the Committee on Migrant Workers set up under the CMW, as a minimum of ten states need to opt in to make the Committee competent for such monitoring. Presently, only two states have made relevant declarations. Guatemala has declared itself willing to mandate the committee to consider inter-state (art. 76 CMW) and individual claims (art. 77 CMW), while Mexico has rendered a declaration on individual claims only.
46. One of the few documented examples I was able to find is the Dutch government's position, which expresses concern on article 27 (giving access to social security to both documented and undocumented migrants). See Letters from the Dutch government, made available at http://www.december18.net/ node/1755. Canada expresses concern at what it considers to be drafting mistakes that could lead inter alia to extraterritorial effects. Ibid.
47. Article 28 reads as follows: Migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment.
48. Article 35 reads: Nothing in the present part of the Convention shall be interpreted as implying the regularization of the situation of migrant workers or members of their families who are non-documented or in an irregular situation or any right to such regularization of their situation, nor shall it prejudice the measures intended to ensure sound and equitable conditions for international migration as provided in part VI of the present Convention.
49. See Gunneflo with Selberg this issue, pp. 173-191. For an overview of practices in EU countries and an argument for liberalised access to health services for undocumented migrants, see R. Romero-Ortu?, 'Access to health care for illegal immigrants in the EU: should we be concerned?', 11 European Journal of Health Law (2004), pp. 245-272.
50. See the contributions in this issue by Gunneflo with Selberg, 12(2) European Journal of Migration and Law (2010) 173-191;
51. and Alexander, 12(2) European Journal of Migration and Law (2010) 215-240.
52. Belgium is a wonderful example. In an answer to a parliamentary question, the Belgian government affirmed that it had no plans to sign or ratify the CMW. It held that 'a number of departments expected serious difficulties because certain clauses in the convention contradict a number of aspects of Belgian law and regulations' (House of Commons 2002-2003, Bull. 3, no. 23). This claim was effectively refuted in a thoroughly researched article, where it is shown that ratification would require no major legal changes to Belgian legislation. D. Vanheule et al., 'The Significance of the UN Migrant Workers' Convention of 18 December 1990 in The Event of Ratification by Belgium', 6 European Journal of Migration and Law (2004), pp. 285-321.
53. See the contribution by Tjernberg in this issue; 12(2) European Journal of Migration and Law (2010) 149-171.
54. With a few exceptions, family reunion cases are declared as inadmissible when applicants failed to comply with immigration law requirements (such as being present without a residence permit). See, e.g., Benamar v. the Netherlands, Judgment of 5 April 2005, ECtHR, Application No. 43786/04. I am grateful to Hannah Helmink for making me aware of the nuances of ECtHR case law in this regard.
55. Could an alternative explanation be that recipient states in the North fear that the CMW Committee will embark on extensive interpretations of the rights accorded to undocumented migrant workers, carving out a right not to be removed in the long run? A look at the case law of the CAT Committee on art. 3 CAT shows that such developments would not be entirely unreasonable to expect of a body composed by both Southern and Northern experts. However, states can commit themselves under the CMW without opting into monitoring. Also, monitoring does not formally produce obligations for respondent states to implement the views adopted by the Committee of the CMW. A residual risk would be that the CMW Committee establishes interpretations of the CMW that might be seen as identical with those rendered from the application of arts. 31-33 of the 1969 Vienna Convention on the Law of Treaties and therefore authoritative. Nonetheless, given the language of the CMW and the optional character of monitoring, I do not believe that fears related to monitoring can explain the position taken by Northern states to a sufficient degree.
56. Ball and Piper provide an example from the Philippines, a country which has developed a sophisticated apparatus for exporting its labourers in order to promote remittance incomes. Albeit geared prima facie at documented migrant workers, the following example has bearing on undocumented migrant workers as well. In 1995, a new Migrant Workers and Overseas Filipinos Act (RA 8042) changed the regulatory framework, curtailing oversight and control by the main Filipino authority in the area. Ball and Piper suggest that, while the act had its focus on the human rights protection of Filipino workers abroad, it was "based on a strong endorsement of neo-liberal, free trade thinking underpinned by the notion of deregulation. In so doing, however, the Philippine State embraces a victim discourse with respect to the broader process of globalisation, where the provision of labour to meet international demand is outside its ability to control". R. Ball and N. Piper, 'Globalization and Regulation of Citizenship - Filipino Migrant Workers in Japan', 21 Political Geography (2002) 1013-1034, at p. 1022.
57. See Section 4 supra.
58. It would be interesting to map parallels between the discoursive figure of the "strike breaker" on industrialized labour markets of the 1920s and -30s and that of the "illegal alien" on the contemporary labour market.
59. There are interesting examples of trade union strategies in Spain actively involving undocumented migrants into labour market policy. However, they do not detract from the point that the inferior political capacity of the undocumented migrant will persist even among kindly unionists.
60. See Gunneflo with Selberg.
61. Juridical Condition and Rights of the Undocumented Migrants, 17. September 2003, Inter-Am. Ct. H.R., Advisory Opinion OC- 18/03, [hereinafter Advisory Opinion]. Available at http://www. corteidh. or.cr/juris-ing/index. html.
62. Advisory Opinion, supra, para. 134.
63. 12(2) European Journal of Migration and Law (2010) 193-214.
64. There is no implication that judicial proceedings on back payments in any way impact on removal. See Directive 2009/52/EC providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals, adopted on 18 June 2009. OJ L 168/32 of 30 June 2009, art. 6. See also Inghammar's contribution in this issue; 12(2) European Journal of Migration and Law (2010) 193-214.
65. C. Dohler, 'Schuften feinen Euro die Stunde', Die Zeit, No. 47, 12 November 2009, p. 96.
66. By way of example, Swedish procedural rules would allow trade unions to represent an undocumented migrant worker in proceedings on the violation of a collective agreement by an employer. Different from certain German trade unions, their Swedish counterparts appear not to be interested in this option. I am indebted to Andreas Inghammar for pointing this out to me.
67. Even in these areas, evidence supporting continued restrictivity can be identified. A few months before the Inter-American Court issued its Advisory Opinion quoted above, he U.S. Supreme Court had ruled that an undocumented worker was not entitled to backpay under the National Labor Relations Act as a remedy for wrongful termination for union activity: We . . . conclude that allowing the [respondent National Labour Relations] Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations. Hoffman Plastic Compounds v. NLRB, 27 March 2002, U.S. Supreme Court, 535 U.S. 137 (2002), p. 13.
68. Z. Slavnic, 'Political Economy of Informalization', 3 European Societies (2009), pp. 1-21.
69. Ibid., supra, p. 4.
70. Ibid., p. 11.
71. "[L]iberty of circulation which has always been a rare and unequally shared advantage rapidly becomes the principal stratifying factor of modern and post-modern projects". Z. Bauman, Globalization: The Human Consequences, European Perspectives (Cambridge: Polity Press, 1998), p. 22.
72. There are historical precedents to state interventionism preserving the productivity of unfree labour. "The legislation of Hadrian [whose reign lasted from 76-138 AD, author's remark] was the first to grant a significant place to the slave. Most characteristically, the slave for the first time earned the right to lodge a complaint - in very special cases, it should be added - against his own master. The same emperor's legislation dealt with cruelty against slaves and made the crime of castration equivalent to homicide . . ." Rotman, supra note 39, at 169. As the children of slaves would be slaves, too, castration had a direct bearing on the reproduction of a labour force critical to the imperial economy. The same goes for other aspects of self-preservation by the Slave, from then on endorsed and protected by civil law.
73. "[T]he movement of the progressive societies has hitherto been a movement from Status to Contract." H. Sumner Maine, Ancient Law (New York: Henry Holt, 1864), p. 165.
74. Supra.
75. M. Nyquist, 'Hobbes, Slavery and Despotical Rule', 106 Representations (2009) 1-33.
76. Ibid., pp. 12-13.
77. Ibid., p. 10.
78. "In every commonwealth and hosehold wheter there are slaves [servi] what the free citizens and childern of the family have more than the slaves is that they perform more honourable services in commonwealth and family, and enjoy more luxuries." Th. Hobbes, De Cive, 2.9.9, in R. Tuck (ed.), On the Citizen/Thomas Hobbes (1998), p. 111, as quoted by Nyquist, supra note 70, p. 11. See also Nyquist, supra note 70, pp. 8-9.
79. Th. Hobbes, Elements of Law, 1.14.13, in F. Tonnies (ed.), The Elements of Law: Natural and Politic (1969), p. 73-4, as quoted by Nyquist supra note 70, p. 2.
80. See, e.g., S. Scarpa, Trafficking in Human Beings - Modern Slavery (Oxford: Oxford University Press, 2008). The term "slavery" is used polemically without considering the implications of analogies between practices in antiquity, in the early modern age and in the 21 century. Slavery in antiquity is covered on one page, apparently in order to justify the book's title (Section 1.2). Its essential similarity, or even identity, with trafficking is assumed rather than argued. Scarpa's monograph is but one example of the widespread use of the term slavery as a shrill metaphor in the trafficking context.
81. Nyquist's point is that Hobbes' justification of slavery out of the juridico-military situation of battle captivity is fundamental to the way he develops his conception of sovereignty. He derives the relationship between sovereign and subject from that between master and slave, which makes slavery into a foundational idea of community. Nyquist, supra note 70, p. 13.
82. Nyquist, supra note 70, p. 15.
83. Hobbes, Elements, supra note 75, as quoted by Nyquist, supra note 70, p. 3.
84. Hobbes, Leviathan, 2.20, in R. Tuck (ed.), Leviathan/Thomas Hobbes (Oxford: Oxford University Press, 1996), p. 141, as quoted by Nyquist, supra note 70, p. 23.
85. Nyquist, supra note 70, p. 12.
86. H. Grotius, The Rights of War and Peace, in R. Tuck (ed.), The Rights of War and Peace/Hugo Grotius (Oxford: Oxford University Press, 2005), 3:7.5.1, 1364, as quoted by Nyquist, supra note 70, p. 12.
87. Migrant Workers Convention, Preamble, paras. 13-14.
88. Nyquist, supra note 70, p. 13.
89. Ibid,.
90. Allusions to the "fight" or "combat" against "illegal migration" and "human smuggling and trafficking" have been and still are commonplace in Northern policy documents. The recently agreed Stockholm Programme, setting policy priorities of the EU in the "Area of Freedom, Security and Justice", contains indicative language, although the tone is less bellicose than a decade ago: The European Council is convinced that effective action against illegal immigration remains essential when developing a common immigration policy. The fight against trafficking in human beings and smuggling of persons, integrated border management and cooperation with countries of origin and transit, supported by police and judicial cooperation, in particular must remain a key priority for this purpose. Council of the European Union, The Stockholm Programme - An open and secure Europe serving and protecting the citizens, Doc. No. 17024/09, Brussels, 2 December 2009, 6.1.6, p. 66.
91. See, e.g., T. Spijkerboer, 'The Human Costs of Border Control', Briefing Paper, European Parliament, IP/C/LIBE/FWC/2005-23/SC1, quoting one source documenting some 7,000 deaths at European borders in the period from 1993-2006. See also Legomsky, supra note 35, p. 78, with further references to US debates on the correlation of intensified border enforcement and border deaths.
92. There is a privileged exit from this type-cast state of nature: refugeehood under the 1951 Refugee Convention or under complementary forms of international protection. While not being the subject of this article, both forms of protection offer a form of emancipation for a select and limited group of persons originating from states in the South. It is important to recall, first, that the unqualified invocation of human rights violations outright is not enough to aquire international protection. Second, credibility testing offers an important filter which only those can pass who are found to subject themselves to a Westphalian sovereignty narrative. See J. Beard and G. Noll, 'Parrh?sia and Credibility: The Sovereign of Refugee Status Determination', 18 Social & Legal Studies (2009), pp. 455-477.
93. The 2005 World Summit Outcome Document - arguably the most relevant source to date for tracking states' agreement on a "responsibility to protect" - locates the responsibility to protect with that state on whose territory a threatened population is present. In a subsidiary fashion, "the international community, through the United Nations" is entitled rather than obliged to "help protect populations" from specified forms of harm. It should be recalled that the World Summit Outcome Document is far from being or impacting hard law. World Summit Outcome, General Assembly resolution 60/1, 2005, paras. 138-139.
94. W. Hamacher, 'The Right to Have Rights (Four-and-a-Half Remarks)', 103 South Atlantic Quarterly (2004), 343-356.
95. Tertullian, Apologeticum (Cambridge: Cambridge University Press, 1917), p. 38, as quoted in Hamacher, supra, p. 343.
96. Hamacher, supra note 89, p. 344.
97. Hamacher, supra note 89, pp. 345-6.
98. K. Marx, On the Jewish Question (1844), p. 150, as quoted by Hamacher, supra note 89, p. 348.