SASS ROGANDO SASOT

First of 5 parts

DO non-citizens have a right to participate in the conduct of public affairs of our country? Do they share the same political rights as the citizens of the country they visit? That’s the heart of the issue of the deportation of foreigners from our country for participating in partisan political activities, in violation of their condition of stay as a non-immigrant. In this five-part column, I will address this by unpacking the legal-political history of the basis of the exclusion of non-citizens from the territories of sovereign states, which is one of the most deeply entrenched legitimate practices in international relations.

We have a policy of prohibiting non-citizens from participating in partisan political activities. In the deportation order of Thomas van Beersum, the Dutch citizen who participated in the protest rallies during the 2013 state of the nation address of then President Benigno Aquino 3rd, the Bureau of Immigration stated this policy.

According to the BI, Van Beersum’s “real intention in coming to the [Philippines] is not for tourism, business, or for pleasure but to protest against the government and engage in partisan political activity which prove him undesirable and in violation [of] the limitation and condition under which he was admitted as a non-immigrant.”

This was later formalized in the BI’s July 2015 operations order on the “Prohibition on Foreign Tourists in Engaging in Political Activities in the Philippines.” It was signed by then BI Commissioner Siegfred Mison, and approved by then Justice Secretary Leila de Lima.

Section 1 states that foreign tourists have limited “political rights during their stay in the Philippines…[They] are prohibited from engaging in any political activity as defined by law and jurisprudence, such as but not limited to, joining, supporting, contributing or involving themselves in whatever manner in any rally, assembly or gathering, whether for or against the government.”

This policy flows from the principle of territorial sovereignty, which confers on states the power to determine who can participate in every aspect of their societies — political, economic, cultural. Our country’s policy to deport foreigners for their political activities is a legitimate exercise of the sovereign right to decide who can participate in the conduct of our public affairs.

The principle of territorial sovereignty grants states the supreme and exclusive authority within their own territories. It confers on states the monopoly to decide on the conduct of its internal affairs. And as affirmed by the United Nations General Assembly 1965 “Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty,” this principle confers on states the “inalienable right” to shape their own political, economic, social, and cultural systems “without interference in any form by another state.”

This notion of territorial sovereignty of exclusive political spheres took a while to mature. The Peace of Westphalia (1648) is generally considered as the pivotal event in the development of this principle. The Peace is comprised of the treaties of Münster and Osnabrück, which ended the Thirty Years War in Central Europe.

According to Thirty Years’ War scholar Derek Croxton in “The Peace of Westphalia of 1648 and the Origins of Sovereignty,” the idea of “exclusive spheres of authority” was not in the treaties themselves but emerged as a “consequence” of their negotiations.

Absent in the treaties as well, political scientist Jordan Branch pointed out in “Colonial Reflection and Territoriality: The Peripheral Origins of Sovereign Statehood,” is the concept of territory essential to the principle of territorial sovereignty. These treaties, Branch observed, still follow the medieval notion of territory being a “series of places, with authority radiating outward from centers rather than inward from linear boundaries.”

The concept of territory essential to the principle of territorial sovereignty is a territory with delineated boundaries. This modern conception emerged in the 16th century as European powers employed the rediscovered Ptolemaic cartographic grid techniques in mapping the Americas. While European colonial powers neatly divided the New World into non-overlapping territorial spaces, the Old World continued to be organized according to the medieval conception of territory.

The shift from medieval to modern territoriality took place after the Napoleonic wars. The post-Napoleonic settlements defined territories according to their frontiers, and consequently authority got defined according to its boundaries: exclusive within a bounded territory. This consolidated the principle of territorial sovereignty which became “the constitutive basis of European (and eventually global) statehood [and] has remained relatively fixed,” Branch explained.

When it developed in the 17th and 18th century, the power to exclude or expel non-citizens was widely recognized but “sparingly” exercised, as pointed by Canadian immigration lawyer Lorne Waldman in “The Limits on a State’s Right to Exclude and Expel Non-Citizens Under Customary International and Human Rights Law.”

Territorial sovereignty as essentially the power to exclude is a result of legislation and jurisprudence responding to the rising anti-immigrant sentiments by the end of the 19th century. Prior to this, not much of a difference existed between the freedom of movement of citizens and non-citizens. Immigration policies were lenient.

In the next part, I will discuss the international norms and jurisprudence, establishing the right of states to exclude non-citizens from participating in political activities in their territories.

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