Document Type

Article

Disciplines

International Law

Abstract

Nationality and territory are connected in many ways.' The classical understanding of sovereignty is traditionally rooted in the exercise of authority over people and place. A necessary consequence of understanding the world as inhabited by sovereign countries in charge of separate societies divided by unambiguous borders is the perpetuation of a clear distinction between what is "inside" and what is "outside," both in terms of territory and in terms of people who either "belong here" or "not."2 This vision of the world, which is largely based on the de Vattelian tradition of international relations and law,3 is very much simplified, to say the least. Territorial borders, as we know them, are as new4 as the idea of persons belonging to states, which, however neatly described in international law books, has never (and could never) become a perfect reality in practice.5 Taken seriously, the generally embraced doctrinal extreme of sovereignty of States in International Law comes down to a claim to a dichotomy existing between the "order inside" the states and "anarchy outside," as Richard Falk neatly put it.6 Moreover, anarchy cannot possibly be compared with order, whence the claims that no equality of citizens between states can exist or should be protected. States, just as people, are so much used to this reality that it is accepted as a given. In this context, it seems only natural for states to try to protect their citizens from the perceived outside anarchy - the reverse of the coin of protecting themselves from such anarchy by controlling the entry of non-nationals.8 Although disputed by some theorists, the right of states not to admit unwanted aliens seems to be very well established in the practice of International Law, several truly minor exceptions notwithstanding.' 0 These are often taken, to agree with Dauvergne, to "truly mythic proportions," which misrepresents their actual place in the context of the regulation of the full scale of world migration.

Whatever we find in the law books, people continue to migrate, no matter which position states adopt vis-i-vis the migrants - either accepting them, or making them illegal.12 Moving in search of a better life is one of the key drivers behind the development of human civilization. 3 It is thus not surprising that sovereign states, new arrivals on the civilizational scene, fail to stop it, which is particularly true of liberal democracies.14 It is only recently that such migration started to be frowned upon. The generally accepted stance is that those unlucky enough to be born in miserable places offering no possible opportunities to lead decent lives or develop one's talents should stay where they are without bothering richer nations by the constant attempts to improve their condition.

Once a border is drawn, two spaces emerge. Consequently, dividing the right to migrate - if we can at all speak of the existence of such a "right" - into the right to "leave" the space on the one side of the border and the right to enter another space, on the other side, is obviously half-hearted. Scholars have been trying to understand whether this distinction drawn in International Law is "perhaps too cynical, or just paradigmatic?"' 5 Whatever the would-be answer, the two rights only make sense when existing and exercised together, side by side. Yet, faithful to the structure of the International Law documents covering the essence of migration, this paper will be entirely dedicated to the right to leave a country - leaving being the more important one of the two, since once leaving is not an option, the issue of not being admitted by a state on the other side of the border will not even arise.

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