Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel
European Journal of International Law, 2016, Vol. 27 No. 4, 901–922
22 Pages Posted: 6 Feb 2017
Date Written: February 6, 2017
This intellectual history of hospitality from Vitoria to Vattel provides an alternative story to the prevailing narrative of migration control. Although migration control is frequently heralded as falling within the domestic jurisdiction of states, the movement of persons across borders is a permanent feature of history that has been framed by international law for ages. The early doctrine of the law of nations reminds us that migration was at the heart of the first reflections about international law through the enduring dialectic between sovereignty and hospitality. This long-standing debate was framed by early scholars following three main trends, which constitute the focus of this article. The free movement of persons was first acknowledged by Vitoria and Grotius as a rule of international law through the right of communication between peoples. By contrast, Pufendorf and Wolff insisted on the state’s discretion to refuse admission of aliens as a consequence of its territorial sovereignty. Yet, in-between these two different poles – sovereignty versus hospitality – Vattel counterbalanced the sovereign power of the state by a right of entry based on necessity. As exemplified by the founding fathers of international law, the dialectic between sovereignty and hospitality offers innovative ways for rethinking migration.
Keywords: migration, sovereignty, immigration, emigration, migrant, hospitality, asylum, international law, Vitoria, Grotius, Vattel, Pufendorf, Wolff
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