This is another in what I hope to be a month long series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope is that, built up on each other, the series will provide a matrix of thoughts that together might lead the reader in new directions. Though each can be read independently of the others, they are intended to be read together and against each other.
Speaking about the idea that large waves of foreign (European, anyway) immigration might be melded together into a new stronger and unique ethno racial people (Zuloaga 1943) that has been a hallmark of strains of Latin American political theory since the time of the great Argentine political theorist Sarmiento (e.g., 1845), Tulio Donghi noted:
Para los inmigrantes menos prósperos, las ventajas de conservar su extranjería son equivilantemente evidentes: su naturalización aumentaría las áreas de conflicto potentcial con autoridades inferiores cuya arbitrariedad las hace temibles, y los privaría de protección consular que es barrera más eficaz contra esa arbitrariedad.
Donghi nicely points to one of the great tensions of modern migration: the conflict between the need of states to assimilate migrating populations within its own political culture, the need of immigrants to protect themselves against the techniques and price of such assimilationist imperatives, and the incentives for states to protect the rights of their migrating populations (especially as they serve as inbound sources of wealth). That tension is not merely fought on the level of the social and political--it becomes a matter of law. And that generates another set of conflicts--between municipal law, international law and the power of the international control regime to affect or force changes to national constitutional frameworks.
All of these elements have played out in the recent war between the United States and Mexico. The Americans would prefer an assimilated population of Mexican migrants, whose entry and exit (and consequential legal status in the United States) would be controlled closely by the state. The Mexicans would prefer fair treatment of its nationals, many of whom have not migrated in the sense of leaving on socio-political culture to embrace another, but merely seek work where they can find it across a space within which a border is a figment of the imagination of powerful elites with exploitation high on their respective agendas.
Between them the Americans and Mexicans have each a set of self referential federal legal systems caped off by a constitution. But they also have a number of treaties between them that serve as bridges across that border that many people travel. One of them, the Vienna Convention (1963), provides the sort of consular protection Donghi mentions as a barrier to abuse. Article 36 "ensure[s] that no signatory nation denies consular access and assistance to another country's citizens traveling or residing in a foreign country...."
That provision of the Vienna Convention has proven fertile ground in the border war between Mexico and the United States over the control of the bodies of migrants. At stake was the bodies of a number of Mexican nationals convicted of various offenses, and potentially condemned to execution in accordance with the criminal law of the states in which they were arrested and tried. To protect them against the potential arbitrariness of state officials these nationals eventually sought the protection afforded by their status as foreign citizens. What they got was an international judicial conversation that pits the forces of international legal assimilation against both a nation and its semi sovereign parts.
The International Court of Justice has determined that the Vienna Convention trumps municipal law, perhaps even municipal constitutional law. (Case Concerning Avena and Other Mexican Nationals 2004). The American Supreme Court first was willing to see if the American President might have a power to compel states within the American federal system to comply with such treaty obligations as he might deem worthy of direct implementation by such inferior political entities. (Medellín v. Dretke 2005). The Texas Court of Criminal Appeals determined that the president had no power to reach into the affairs of Texas absent a valid Congressionally enacted law through which he might purport to enforce, that the Vienna Convention had no direct effect in Texas, that the International Court of Justice (however lofty its title or judicial ambitions), had no authority in Texas nor were their decisions enforceable as law within Texas standing on its own, and that, in any case state law in this case would trump all determinations to the contrary. (Ex parte José Ernesto Medellín 2006). Lastly, the American Supreme Court relented and agreed that neither the Vienna Convention nor the opinions fo the International Court of Justice were worth the paper they were written on (at least within the United States) absent Congressional assent in the form of statute or other form of legitimate act of acquiescence. (Medallín v. Texas 2008).
Conventional commentary focused on the internationalizing elements of the decisions and the appropriate position of the judicial apparatus of the United States in that context (e.g., McGuinness 2006). But Donghi, I think, has the better perspective: the ability of migrants to retain their nationality might well serve to protect against arbitrariness in ways that assimilation into the host culture might reserve for the second or third generation of migrants. The detritus of this insight, in law, might well reshape the understanding of the relationship of international to constitutional law as it further develops the transnational element of constitutional law.
Tulio Halperin Donghi, El espejo de la historia: problemas argentinos y perspectivas hispanoamericanos (2d ed., Buenos Aires: Editorial Sudamericana, 1998) (ISBN 950-07-1396-9).
Maragret E. McGuinness, Medellín, Norm Portals, and the Horizontal Integration of International Human Rights, 82 NOTRE DAME L. REV. 755 (2006).
Domingo F. Sarmiento, Facundo (Buenos Aires: Santillana, 1997) (1845).
Manuel A. Zuloaga, Nuestra Raza: y los problemas de posguerra en la Argentina (Buenos Aires: Editorial La Facultad, 1943).
Cases and Treaties
Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.), 2004 I.C.J. 1 (March 31).
Medellín v. Dretke, 544 U.S. 660125 S.Ct. 2088 (2005).
Ex parte José Ernesto Medellín, Court of Criminal Appeals of Texas, 223 S.W.3d 315, 2006 WL 3302639 (Tex.Crim.App., Nov. 15, 2006).
Medellín v. Texas, 128 S.Ct. 1346 (2008).