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- Marques Pedro, Guilherme, 1984-
(författare)
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The Human Right to Leave: But Whereto?
- 2022
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Doktorsavhandling (övrigt vetenskapligt/konstnärligt)abstract
- While all persons — with a few exceptions — are allowed to leave any country regardless of nationality, not all persons are allowed to enter any country of their choosing; and only citizens enjoy, in principle, the right to enter their country of nationality, which most often, and by necessity, is a restricted number of countries, since some of them prohibit multiple nationality. One claim that is frequently made in contemporary migration-related literature, and that much migration-related philosophical debate presupposes in one way or another, yet remains unexplored, is the claim that the right to leave a state – enshrined in the Universal Declaration of Human Rights of 1948 – does not entail a right to enter another state. This claim is typically made in relation or conjunction with another (set of) claims: that this alleged state of affairs is wrong somehow, or vice versa, that it is not. This dissertation deals with both claims and offer a first systematic study of these. On the one hand, the aforementioned descriptive claim has caught the attention of many observers who have, for the most part, taken it as a fairly undisputed description of current international law. I defend the view I call descriptive legal symmetrism, according to which there already is a form of symmetry between entry and exit rights, albeit not the one that most scholars set out to look for. On the other hand, in the context of the normative set of claims made by some authors concerning whether this alleged state of affairs is either immoral or unlawful (or both) in that it would expose the migrant to moral injustice and a protection gap in the contemporary human rights regime (namely, that of having, after leaving a country, nowhere to go), I submit that the object of disagreement in the normative legal debate concerns whether or not we ought to use the law to enforce what I call ‘Proposition A’: ‘it is permitted that any person leaves any country (besides justified exceptions), therefore it is obligatory that all states permit entry (besides justified exceptions)’. I conclude that much of the debate focuses on matters that, albeit interesting in their own right, might not be what is at stake. I hope to contribute to the normative discussion by sorting out the different positions, illustrating their truth-making conditions, and stressing where a position depends on problematic assumptions.
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- Pedro, Guilherme Marques, 1984-, et al.
(författare)
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A Right to Leave but No Right to Enter Elsewhere? : Uncovering the Finisterrae in the Migration Regime in Human Rights
- 2021
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Ingår i: Latin American Human Rights Studies. - 2763-8162. ; 1:1, s. 2-33
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Tidskriftsartikel (refereegranskat)abstract
- Hassan Al Kontar appeared in major headlines in 2018. He had left his country of origin, Syria, and refused to return when the Syrian Civil War broke out. He had emigrated a few years earlier to the United Arab Emirates, where he worked as an insurance marketing agent. His work permit expired after the start of the conflict in Syria. So did his passport. Hassan remained in the Emirates illegally, out of fear of being drafted by the army upon his return to Syria. He was then arrested and sent to Malaysia where he was given a three-month tourist visa, but impeded from leaving the airport. Hassan ended up in a legal limbo. In a world like ours, where states jurisdictions exhaust the surface of the earth and determine the relationship between the state and its legal subjects, yet that pledges to protect the human rights of everyone, including non-nationals, how can these legal limbos in the international human rights regime be allowed? Some think there is a paradox at play here in that international human rights law gives a person a right to leave the state where (s)he is physically present, regardless of nationality, but no matching right to enter elsewhere. Others deny this to be the case. This article is not an attempt to add yet another voice pro et contra the wrongfulness of the alleged state of affairs in international law. Rather it seeks to clarify the disagreement by offering a systematic problem-setting. We show what the matter under dispute consists in and which theoretical commitments are necessary to commit to in either side of this debate. We do this in three steps. First, we offer an ecumenical description of the matter under normative dispute. Second, we show that the matter under dispute is unclear concerning the ratio materiae of the action-class regulated by the norms in question. Third, we draw the consequences of this circumstance for the conditions of truth of the opposing positions. It seems that the disagreement is rooted in the very description of the action-class that the norm purports to regulate: in a nutshell, it seems that while one side thinks that the action is a movement of one and the same body in space across the territorial jurisdictional lines of two state actors, the other side to the debate thinks that we are dealing with two actions, separate and separable institutional facts that refer to the individual’s position vis-à-vis a state.
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- Pedro, Guilherme Marques, 1984-
(författare)
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Estado Mundial e direito internacional em Hans Morgenthau
- 2018
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Ingår i: Relações Internacionais. - Lisbon : Instituto Portugues de Relacoes Internacionais, Universidade Nova de Lisboa. - 1645-9199. ; :58, s. 41-68
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Tidskriftsartikel (refereegranskat)abstract
- This article revisits one of the central topics of Hans Morgenthau’s realism – the world state – as a major gateway to one of the most neglected areas in the current historiography of the realist tradition: that of international law. The article thus argues that Morgenthau’s realism can be read in light of Locke’s metaphysical challenge to Hobbes’ view of the state of nature. National interest can in this light be seen as highly conditioned by the republican ideal of popular sovereignty – akin to that of limited government – where law is already operating socially, even before being posited by the state. By developing this parallel with Locke – shared in part by German legal philosophy that preceded Morgenthau – we are in a better position to understand how he accommodates the functional approach in his realist take on international law and on the social prerequisites of a world state.
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- Pedro, Guilherme Marques, 1984-
(författare)
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The Flying Dutchman Asymmetry : Migration rights in question
- 2016
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Konferensbidrag (övrigt vetenskapligt/konstnärligt)abstract
- The right to migrate - usually also referred to in the latin original ius migrandi - describes at once a right to emigrate and a right to immigrate. This project focuses on both ends of this right and queries about the correlativity of exit and entry from a philosophical-legal viewpoint. What sort of right is the right to migrate? Is the correlation necessary? Is it desirable for the right to migrate to be conceived as a perfect right - or should we be satisfied with its apparently ‘imperfect’ nature? The asymmetry which this project sets out to problematic is the following: no one can leave a country without entering another. In other words, one can be legally entitled to leave my country, but what sort of entitlement is that if it does not grant him the legal possibility of entering another? Hence, for a right to be able to protect such individual conduct it must not only ensure the exit movement; it must also consist of a right of entry. In taking the wider perspective of the international system of states we are confronting the moral and legal validity of a right which can never be merely dependent on its enforcement by one single legal system. This project further reflects on the historical backdrop and the legal and political implications that a fully-fledged right to migrate can bring upon international law, international relations theory and the world system of states. It further wonders about whether certain rights - so-called ‘international special (human) rights’ - can only become enforceable - and hence be properly called “rights” - with the advent of a world Leviathan..
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- Pedro, Guilherme Marques, 1984-
(författare)
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The Flying Dutchman Asymmetry : The conflict of natural rights in the history of migration law
- 2016
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Konferensbidrag (övrigt vetenskapligt/konstnärligt)abstract
- 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.
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- Pedro, Guilherme Marques, 1984-
(författare)
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The Right To Migrate : Between A Moral & A Legal Right
- 2015
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Konferensbidrag (övrigt vetenskapligt/konstnärligt)abstract
- The aim of this paper is to query about the extent to which the moral right to migrate can be considered a legal right. Described by many as a natural right, the fundamental assumptions about what a natural right is has changed significantly in history - especially in the history of political and legal ideas - and so has the very notion of ‘nature’ which sits at the heart of both classical and modern natural law traditions. Hence, this paper asks what is the notion of nature that is presumed in the moral claim that migration is a ‘natural’ right. In order to respond to this question, I explore the connection between the classical ius migrandi and the modern freedom of movement, or right to free mobility, as the most recent corollary of that ancient principle. Freedom of movement has been hailed as a key aspect of the various human rights regimes that have developed since the Second World War and, overall, as a key component of any understanding of individual freedom and collective emancipation.
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- Pedro, Guilherme Marques, 1984-
(författare)
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The Westphalian Paradox : The natural right to rule vs the natural right to leave
- 2016
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Konferensbidrag (övrigt vetenskapligt/konstnärligt)abstract
- Many historians have highlighted the religious and social meaning of the right to freedom of conscience as well as the political role it played throughout the history of the religious wars of the late medieval period and their troubled and long appeasement in the peace settlements of Augsburg and Westphalia. The object of such right consisted, as we know, in the individual freedom to practice religion and in the corresponding negative duty of princes not to interfere with it. However, some historians also claim that this was no simple right: its relevance resided in its internal constitution as a ‘cluster of rights’, that is, a set of rights that depended on each other and operated together so as to make ‘freedom of conscience’ possible from both a de iure and a de facto point of view. Among them was the ius emigrandi, the right of members of religious groups to leave the realm, lest they be discriminated on the basis of their religious belief. This right hence correlated with the overall right of religious freedom of which it was an integral and essential part. ’Letting people go’ hence played a stabilising role both in terms of civil peace but also among the sovereign states that were now the new makers of international order. This hidden aspect of the history of individual rights is of direct import to contemporary discussions on rights and their nature as well as to one of the most crucial aspects of current rights theories, that is, the issue of correlativity. The nature of the ius emigrandi thus sheds light on the potential set of relations that obtain with state duties but also with other rights, suggesting that its emergence as the first individual right in modern international law was not without geopolitical significance. It is in that context that I claim that the right of emigration started to be portrayed as a natural right by late medieval thinkers - following premodern reflections on a natural right to free movement but also on a natural right to life in early modern political and legal thought. This is was because the codification of emigration as a ‘legal right’ constituted an unprecedented challenge to political allegiance, and hence confronted what had also started to be characterised, under the theory of the divine right of kings, as the natural right to rule. What was at stake therefore was a conflict of natural rights. We must therefore revisit the philosophical grounds upon which certain rights were deemed as natural over others.
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- Pedro, Guilherme Marques, 1984-
(författare)
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Twin Rights : The Flying Dutchman Asymmetry in Question
- 2016
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Konferensbidrag (övrigt vetenskapligt/konstnärligt)abstract
- Contemporary debates about whether the right of emigration entails a corresponding right of immigration often address this question in terms of a rights asymmetry. They focus on three interrelated aspects of rights theories which are at stake in international migration: (1) how rights relate to duties; (2) how the concept of a right depends upon its exercise; and (3) if certain rights entail other rights. This paper problematises the asymmetry and argues that one of the pioneering instantiations of individual rights in international law - the ius emigrandi, enshrined in the treaties of Westphalia of 1648 - indeed suggests a correlation between the right to emigrate and a right to stay that has been forgotten. Although unexplored, this historical case seems to point to a practical, and hence theoretical, co-dependency between what I refer to as ‘twin rights’. Hence, I ask if this is a case of rights symmetry that has withered away with time.
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