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Paul Fauchille on the Rights of Emigration and Immigration

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International migration is squarely on the present-day agenda of the international community, as attested by the newly released report of the Global Commission on International Migration (see the Documents section of this issue) and by recurrent controversy over proposals to establish a migration analogue to the World Trade Organization. Conventional assumptions about the prerogatives of national sovereignty come up against universalist views of human rights, the logic of globalization, and, in some measure, the regulative ambitions of international organizations. The last period in which this subject aroused comparable ferment was in the 1920s. At that time the main sources of migrants were not countries of the global “South” but self-described overpopulated countries in Europe. In May 1924 one such country, Italy, convened what became known as the First International Emigration and Immigration Conference. Held in Rome, the meeting was attended by delegates from 57 countries and the League of Nations. Among its resolutions was an “Emigrants' Charter,” recognizing rights to emigrate and immigrate but with strong provisos. Thus the right to immigrate was subject to restrictions “imposed for economic and social reasons based in particular on the state of the labour market and the necessity of safeguarding the hygienic and moral interests of the country of immigration” (see the Notes on Migration section in Industrial and Labour Information [Geneva], Vol. XI, July-Sept. 1924, pp. 54–68).

A more systematic discussion of these putative rights appeared in an article published a few months earlier by a prominent French jurist, Paul Fauchille, which is excerpted below. The rights to emigrate and to immigrate are seen as broad and fairly symmetrical, able to be limited by a state only by appeal to its own right of self-preservation. Circumscribing the right to emigrate may seem dated in the light of the blanket provision in Article 13 of the (1948) Universal Declaration of Human Rights that “everyone has the right to leave any country, including his own, and to return to his country.” (In Fauchille's extreme case, a state can seek to prohibit the wholesale flight of its population.) However, on immigration, about which the Universal Declaration is silent, “self-preservation” yields a longer list of grounds for restriction. An issue with contemporary resonance is whether those grounds can include the wish by a state “to prevent a fusion of races which might alter its ethnic character or obliterate its national culture.” Restriction on such a basis would be justified, says Fauchille, only where the intending migrants “belonged to an absolutely different civilisation” and were large in number.

Paul Fauchille (1858–1926) was an expert in international law, author of the four-volume Traité de Droit International Public (8th ed., Paris, 1921–26). He was the founding editor of Revue générale du droit international public and founding director (from 1921) of the Institut des Hautes Études Internationales within the University of Paris. The excerpt below is the major part (subtitled “State and Individual Rights in Theory”) of Fauchille's article “The rights of emigration and immigration,” which appeared in the International Labour Review (Geneva), vol. IX, no. 3 (March 1924), pp. 317–333.
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Document Type: Research Article

Publication date: December 1, 2005

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