A Reappraisal of the State Sovereignty Debate

TLDR

European nation‑states’ control over migration is contested, with scholars arguing that international human rights and a global economy erode sovereignty, while others claim that territorial sovereignty and citizenship are obsolete. The article investigates how international legal instruments constrain national policymakers and how nation‑states respond to such constraints and implementation challenges. Using Council of Europe jurisprudence, the authors evaluate how national courts adopt European norms and how governments adjust policy‑making institutions in response. They find that states devolve decision‑making upward to intergovernmental fora, downward to local authorities, and outward to nonstate actors.

Abstract

The ability of European nation-states to control migration has been at the forefront of the immigration debate. Some scholars have argued that international human rights and the freedom of circulation required by a global economy and regional markets are the two sides of a liberal regime that undermine the sovereignty of nation-states. Others have gone even further and declared the double closure of territorial sovereignty and national citizenship to be outmoded concepts. This article inscribes itself in that debate by answering the following questions: (a) To what extent do international legal instruments constrain the actions of national policy makers? and (b) How have nation-states reacted to international constraints and problems of policy implementation? Focusing on Council of Europe's jurisprudence, the authors assess the extent to which national courts have incorporated European norms and governments take them into account. The article examines ways that national policy makers have responded by shifting the institutional locations of policy making. In evaluating state responses, the article identifies the devolution of decision making upward to intergovernmental fora, downward to local authorities, and outward to nonstate actors.