The Paradox of Migration and the Interests of the Atomistic Nation-States: The Southern African Perspective

  • Phazha Jimmy Ngandwe University of South Africa
Keywords: Citizenry, globalisation, migration, mobility, regional integration, paradoxical, phenomenon, psycho-social, nation-states

Abstract

The "paradox of migration and the interests of the atomistic nation-states" interrogates the phenomenon of migration in general and in the Southern African Development Community in particular. The point of departure of the paper is the African Union and the Southern African Development Community’s legal framework on migration, as read with the national legal instruments of the different member states. Its focal point is the raison d’être of this phenomenon of migration and the corresponding approaches and attitudes of the nation-states within which migration takes place inter se. This includes the psycho-social impact of migration. Internationally as well as regionally, States are concerned with issues of sovereignty, the preservation of the welfare of the citizenry, ensuring social cohesion social, cultural and economic development including job creation, and fighting against transnational organised crime, including terrorism. The theme of the paper is that whereas migration should form the bedrock of regionalism and globalisation, the negative attitudes of the nation-states to migration are more often than not at variance with the objectives of regionalism and globalisation.

 

The central question of the research is how states can discharge their duties and obligations vis-à-vis their nationals without perpetuating the bottlenecks to and the stigma that attaches to migration and thereby upsetting the international as well as regional integration objectives of the free movement of people. This is the issue that the paper is intended to explore. The main areas of concern are that the negative attitudes of the nation-states are manifested in the hostile treatment of migrants at all ports of entry, including illegal or ungazetted points of entry, within the nation-states in general, and in their labour markets in particular. This research therefore explores the paradoxical nature of the duties and responsibilities of states within the migration and mobility discourse. The paper will conclude by making practical recommendations aimed at influencing policy and law.

    

References

Bibliography

Bridge 1971 ICLQ

Bridge JW "The Relationship between International Law and the Law of South Africa" 1971 ICLQ 746-749

Campbell Reflections on Illegal Immigration

Campbell KE Reflections on Illegal Immigration in Botswana and South Africa (University of Botswana Gaborone 2007)

Coleman Report of Countrywatch Review

Coleman DY Report of Countrywatch Review (CountryWatch Houston, TX 2011)

Dugard International Law

Dugard J International Law - A South African Perspective 3rd ed (Juta Cape Town 2005)

Gumede Thabo Mbeki

Gumede WM Thabo Mbeki and the Battle for the Soul of the ANC (Zebra Cape Town 2005)

Hornby and Turnbull Oxford Advanced Learner’s Dictionary

Hornby AS and Turnbull J Oxford Advanced Learner’s Dictionary of Current English 8th ed (Oxford University Press Oxford 2011)

International Labour Office International Labour Migration

International Labour Office International Labour Migration: A Rights-based Approach (International Labour Office Geneva 2010)

Olivier Immigration and the Refugee Legislation

Olivier L Immigration and the Refugee Legislation in Southern Africa: Protecting the State or Protecting Migrants? (Open Society Initiative for Southern Africa Rosebank Date Unknown)

Schaffer 1983 ICLQ

Schaffer RP "The Inter-relationship between Public International Law and the Law of South Africa: An Overview" 1983 ICLQ 277-315

Register of cases

Harksen v Lane 1998 1 SA 300 (CC)

Register of legislation

Aliens Control Act, 1966 (Lesotho)

Constitution of the Republic of South Africa, 1996 (South Africa)

Control of Employment of Non-Citizens Act 11 of 1981

Immigration Act, 1966 (Botswana)

Immigration Act 13 of 2002 (South Africa)

Immigration and Deportation Act, 1967 (Namibia)

Refugee Act 130 of 1998 (South Africa)

Refugee Control Act, 1976 (Zambia)

Refugees Control Act, 1978 (Namibia)

Register of international legal instruments

African Charter on Human and Peoples Rights (1981)

Charter of the Organisation of African Unity (1963)

Charter of the United Nations (1945)

Constitution of the International Labour Organisation (1919)

Constitutive Act of the African Union (2000)

Declaration of Philadelphia (1944)

Declaration on Fundamental Principles and Rights at Work (1998)

Freedom Charter of the African National Congress (1955)

International Covenant on Civil and Political Rights (1966)

International Covenant on Economic, Social and Cultural Rights (1966)

SADC Protocol on the Facilitation of Movement of Persons (2005)

Southern African Customs Union Agreement (2004)

Treaty of the Southern African Development Community (1993)

Universal Declaration of Human Rights (1948)

Register of internet sources

Crush Date Unknown http://bit.ly/14eXwl6

Crush J (ed) Date Unknown Immigration, Xenophobia and Human Rights in South Africa - Migration Policy Series No 22 http://bit.ly/14eXwl6 [date of use 20 Jan 2012]

Feil, Klein and Westerkamp 2009 http://bit.ly/11x3rS0

Feil M, Klein D and Westerkamp M 2009 Regional Cooperation on Environment, Economy and Natural Resource Management Cluster Synthesis Report http://bit.ly/11x3rS0 [date of use 14 Jan 2012]

ILO Date unknown http://bit.ly/ZWwQ3c

International Labour Organisation Date unknown International Migration Programme http://bit.ly/ZWwQ3c [date of use 13 Mar 2012]

ILO Date unknown http://bit.ly/1037XBp

International Labour Organisation Date unknown Structure http://bit.ly/1037XBp [date of use 13 Mar 2012]

MPI 2008 http://bit.ly/14eXNUY

Migration Policy Institute 2008 South Africa http://bit.ly/14eXNUY [date of use 18 Jan 2012]

NEPAD 2001 http://bit.ly/14eWKUZ

New Partnership for Africa’s Development 2001 NEPAD Framework Document http://bit.ly/14eWKUZ [date of use 13 Mar 2012]

SADC 1998 http://bit.ly/X3epgq

Southern African Development Community 1998 Draft Protocol on the Facilitation of Movement of Persons http://bit.ly/X3epgq [date of use 20 Apr 2012]

Published
2017-04-26
How to Cite
NgandweP. J. (2017). The Paradox of Migration and the Interests of the Atomistic Nation-States: The Southern African Perspective. Potchefstroom Electronic Law Journal, 16(1), 426-449. https://doi.org/10.17159/1727-3781/2013/v16i1a2317
Section
Notes