A Brief Response to Pizzutelli and Sitaropoulos

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The argument that I made focused on the selection for admission of foreigners on the basis of economic worth, and I denominate this selection ‘discriminatory’. In his response Nikolaos Sitaropoulos argues that he is “not convinced that, in itself, such differentiation constitutes discriminatory, and hence unlawful, treatment”. However, the fact that it may not be, at least according to the European Court of Human Rights ‘unlawful’, or rather, in breach of the European Convention of Human Rights, although perhaps in breach of other international rules, does not mean that it is not ‘discriminatory’. The international human rights analysis of Sitaropoulos points in the direction of lawfulness for this discrimination in the context of admission. Allowing for this analysis to be correct, and at least suspending an important new argument, I would reframe the title of my argument to argue that it is international human rights law, and not just international migration law, that provides a license to discriminate on the basis of economic worth, exactly because it considers it lawful to do so. Referring to this practice as ‘differentiating’, rather than ‘discriminatory’, ignores the fact that we are talking about a very binary selection process: you are either admitted, or you are not. To differentiate is to identify difference. To discriminate is to grant somebody a right, or to deny it, on the basis of that difference.

Francesca Pizzutelli provides a welcome overview of international legal limitations that may protect people from discrimination according to economic worth. How should we, however, qualify these limitations? Do they indicate a new legal development? Or are they instead scattered exceptions that confirm a rule? Her analysis strongly reminds me of two very telling and almost identical anecdotes in which a refugee lawyer in the UK and an immigration officer in Germany were advising some prospective asylum seekers to seek entry through employment or ‘knowledge migration’, because that offered much better prospects. In addition, how should we assess these rather humble limitations against a backdrop in which citizenship of EU countries is increasingly for sale? And what to make of the fact that as this piece goes online, the UN Security Council is preparing military action against smugglers and accepting that this may result in the killing of ‘migrants’, as ‘collateral damage’? This author at least finds it hard to see in the limitations highlighted by Pizzutelli a significant obstacle to the right to discriminate according to economic worth.

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Emmanuel Kuza says

May 22, 2015

I am saddened that the much celebrated global village is a farce. With all the breakthrough in science and technology, with the wider exposure and civilization, people still find cause to justify or rationalize breaches of fundamental freedom.

Call it "differentiation" or discrimination, it all ends up in the denial or justification or denial or fundamental freedom.

The history of human existence is the history of migration. Nobody can deny this. People are pushed by survival instincts to move. From the days of wars of conquest to slave trade down to colonialism, who gave permission for movements?

I quite understand the global security challenges. The United Nation Security Council must open their eyes before they are cajoled into supporting further discrimination or division of the world.

The developed work must embrace a more comely way to regulate migration.

Agreed, human trafficking can be linked to international migration. But not every migrant is being trafficked. The fact that we have "developed" and "developing" world show that life is surely better in some places than others.

The search for better life should not be criminalized. Discrimination or "differentiation" on the basis of economic strength is another way of saying "entry for for sale".