migration law (hereinafter IML) can be described and conceptualized as a deconstructivist architecture both literally and metaphorically.
It is an architecture of fragmentation
based on dissonance and asymmetry that questions the traditions of harmony, unity, and
Initiated by the French
philosopher Jacques Derrida, the deconstructivist architectural movement distorts the
conventional oppositions between form and function, center and margin, outside and
This deconstructivist design of complexity and contradiction unveils both the
architecture and the substance of IML. As a cross-cutting field, migration is governed
by an eclectic set of superimposed norms that are scattered throughout a wide array of
overlapping fields (human rights law, trade law, humanitarian law, labor law, refugee
law, maritime law, etc.). This impression of fragmentation and instability is further
exacerbated by the ontological dilemma of hospitality in a world of sovereign states.
This tension between hospitality and sovereignty represents the foundational but
self-contradictory premises of IML. The foundation stones of IML have been set up by
scholars through this dialectic, while its overall design has been shaped by states in a
rather erratic way that produce a deconstructivist edifice.
The Foundation Stones of IML in the Legal Doctrine
From the sixteenth to the eighteenth centuries, the movement of persons across
borders was a typical subject of discussions among the founding
fathers of international law.
Vitoria (1480–1546) was the first early scholar who
conceptualized migration as an integral component of the law of nations. His
ius communicationis established the free movement of persons as
a binding norm of international law grounded on the natural sociability of human
beings. For him, such a right of communication existed since the beginning of the
world and was not called in question by the division of the world into different
On the contrary, the right of communication is at the heart of his whole conception
about the law of nations. It is the precondition for establishing relations between
nations and constitutes by the same token the raison
d’être of international law. While conceptually sound and
attractive, the edifice of Vitoria suffers from a major paradox: his ius
communicationis is both the underlying principle of a universal society
composed by equal nations and the main legal ground for justifying the
colonialization of the New World.
While Vitoria set the founding stones of IML, Grotius (1583–1645) consolidated
its foundations with more concrete and consistent material. He not only refined the
right of communication outside any colonial context as a truly universal rule
binding all nations, but he also strengthened it through two building blocks: the
right to leave one's own country and the right to remain in a foreign
country. He endorsed Cicero's view of emigration as “the foundation of
liberty” and reinforced it by a correlative right of immigration grounded on
the laws of hospitality. The symmetry between emigration and immigration thus
supports and cements free movement of persons into one single continuum. These two
imbricated blocks still have some cracks as neither is absolute. For Grotius,
emigration can be submitted to restrictions in the interest of the society (mainly
for debtors and deserters), while immigration requires a just cause to enter into
another country and foreigners can stay therein provided they respect the laws of
the host state.
The sophisticated and balanced construction initiated by Vitoria and consolidated by
Grotius was subsequently undermined by Pufendorf (1632–1694) who broke
emigration away from immigration as two opposite components governed by different
norms. Departure from one's own country remains a distinctive right on its
own, whereas admission in another country becomes a discretionary power of the
(1679–1754) further exacerbated this shift, following a patrimonial
conception of the state whereby ownership of a territory equates with sovereignty.
From this assimilation with property rights, territorial sovereignty becomes the
bastion of the state and captures both immigration and emigration within its
domestic jurisdiction. Nonetheless, like Pufendorf, Wolff conceded an exception of
free passage as an imperfect right to claim—but not to be
result of this fragile construction, hospitality becomes charity: the state is
morally bound to admit foreigners but legally free to refuse them.
This existential dialectic between sovereignty and hospitality was reframed by Vattel
(1714–1767), the most influential scholar of international law.
Although he recycled most of the
materials used by his predecessors, he reassembled them in a rather modern fashion
with the overall result of renovating the whole structure of IML. Like Grotius,
Vattel reaffirmed emigration as a fundamental right when the state of origin is
unable to provide subsistence to its own citizens or fails to protect them. Yet he
agreed with Wolff that immigration falls within the competence of the host state as
a consequence of its territorial sovereignty. This normative asymmetry between
emigration and immigration has become today the orthodoxy of IML.
Vattel's construction was however much more nuanced. For him, every nation is
bound by both external and internal laws that constitute together the fabric of the
law of nations. From this angle, the external right of deciding upon admission is
qualified by an internal duty of innocent passage. The latter cannot be refused
without strong reasons. Otherwise the state commits an abuse of rights. The right to
control entry into its territory can still prevail over its duty of innocent passage
when admission of foreigners is prejudicial or dangerous to the state.
This balancing act between sovereignty and hospitality is further refined by another
key notion that has been literally forgotten by courts and commentators. The key
contribution and modernity of Vattel lie in the right of necessity as a way to
reconcile free emigration with immigration control. Instead of acknowledging an
unbridled discretion of states, Vattel endorses a
right to illegal entry when there is no other means to flee from a danger
or to procure one's own means of subsistence:
When a real necessity obliges you to enter into the territory of
others,—for instance, if you cannot otherwise escape from imminent
danger, or if you have no other passage for procuring the means of
subsistence, or those of satisfying some other indispensable
obligation,—you may force a passage when it is unjustly refused.
Necessity is a perfect right of individuals: it leaves no room for the state to
refuse foreigners. Nonetheless, necessity prevails over sovereignty insofar as
irregular entry is the only way to safeguard an essential interest of the foreigner.
Against this frame, Vattel's right of necessity prefigured a postmodern duty
of non-refoulement where there is a risk of serious violations of human rights
(whether civil, political, economic, or social).
Ironically, his views have been distorted and
instrumentalized to substantiate an unqualified discretion of states for
refusing admission of foreigners.
The first influential case is provided by the oft-quoted Ekiu
judgment. The U.S. Supreme Court held in 1892:
It is an accepted maxim of international law, that every sovereign nation has
the power, as inherent in sovereignty, and essential to its
self-preservation, to forbid the entrance of foreigners within its
dominions, or to admit them only in such cases and upon such conditions as
it may see fit to prescribe. Vattel, lib. 2, §§ 94, 100.
At that time, the authority of Vattel was instrumental in justifying a radical
breakdown from the longstanding tradition of free movement.
Immigration control is indeed a recent invention of states. With few exceptions (in
times of war or domestic turmoil), immigration control only emerged at the end of
the nineteenth century in some countries and for specific categories of aliens. It
was then generalized as wartime
legislation during the First World War and reinforced by the economic
crisis of the interwar period.
Still today, the vicious circle of armed conflicts, terrorism, and economic
recession constitutes an influential factor for justifying border control.
Meanwhile, immigration control has become conventionally associated with territorial
sovereignty, although the former was not concomitant with the latter.
Despite this late resurgence of sovereignty, the treatment of foreigners in their
host states has remained a classical
question of international law which was crystallized during the first half
of the twentieth century through the law of state responsibility and the notion of a
minimum standard of treatment.
that time, the responsibility of states for injuries to aliens was a branch of
international law on its own. It was even acknowledged by Jessup as
“one of the most highly developed branches of that law.”
This field was however not free
from controversies: diplomatic protection was often used by Western states as a
pretext for interference in newly independent states. As a result of interstate
disputes, a considerable body of jurisprudence has progressively refined the content
of minimum standard by reference to a core set of basic rights. From this
perspective, the rights of aliens were the forerunner of human rights at the
international plane. Since then, the normative expansion of human rights law has
largely absorbed the minimum standard inherited from the old law of aliens.
In parallel to this structural evolution, the very expression “international
migration law” was first coined in 1927 by Varlez in
his course at The Hague Academy,
published International Migration Law in 1972 (reedited in
Since the beginning of
the twenty-first century, a substantial
re-emerging field of international law.
Although its epistemic community is growing, IML is still
a work in progress: it is not acknowledged as a branch of international law nor as a
professional silo, in the way that refugee law is alongside the debatable
Western-centric opposition between forced and voluntary migration.
Instead of establishing another subfield of specialization, IML provides a holistic
frame of analysis that unveils the complex and contradictory relations between
migration and international law. Its apparent instability and fragmentation have
inevitably raised some doubts about its overall structure. It is sometimes described
as “substance without
a “giant unassembled
juridical jigsaw puzzle, [in which] the number of pieces is uncertain and the
grand design is still emerging.”
Both views can be reconciled through a
deconstructivist design of IML: the absence of an integrated form
is the architecture of IML, where contradiction, distortion,
and asymmetry are intrinsic to its structure. In contrast with classical
architecture based on order and unity, IML is a multilayered construction of norms
that coexist and sometimes collide to frame the ontological tension between
hospitality and sovereignty.
The Bedrock and Pillars of IML in the Sources of International Law
The deconstructivist architecture of IML is graphically illustrated by the sources of
international law. Its bedrock is customary law from which emerge two uneven pillars
(treaty law and soft law). Customary
law provides the substratum of IML by endorsing the basic principles
governing the movement of persons across borders along the migration continuum:
departure, admission, and sojourn.
The customary law nature of the right to leave (with the
usual restrictions of national security and public order) finds strong support in a
large number of widely ratified treaties, interstate resolutions, and domestic
constitutions. As a result of a long normative process, departure has been divorced
from admission to constitute a distinctive norm primarily addressed to states of
origin and reinforced by the right to return.
Yet the absence of a symmetric right to enter another state does not mean that access
to the territory operates in a legal vacuum. State practice is much subtler than an
impermeable regime of closed borders. The admission of foreigners is governed by
customary law through both substantive and procedural requirements (including the
principle of non-refoulement, the prohibitions of collective expulsion and arbitrary
detention, access to consular protection). Moreover, the sojourn of migrants in host
countries is framed by the customary law principle of nondiscrimination, prohibiting
any difference of treatment that is not reasonable, objective, and
The general normative framework grounded on customary international law is further
detailed and supplemented by treaty law. In contrast to the former source, treaty
law follows a segmented approach: it establishes specialized conventional regimes
focusing on particular categories of migrants. Although commentators frequently
lament that there is no comprehensive treaty governing all aspects of migration,
this situation does not differ from that of many branches of international law (like
humanitarian law or environmental law). IML is no exception. The plurality of
treaties is even necessary in such a complex and multidimensional field.
At the universal level, specialized treaties focus on three categories of migrants:
refugees (1951 Geneva Convention and 1967 Protocol), migrant workers (1949 Migration
for Employment Convention No. 97, 1975 Migrant Workers Convention No. 143, 1990
Migrant Workers Convention), and smuggled and trafficked migrants (2000 Protocols
against smuggling of migrants and trafficking). These seven core treaties of IML
establish detailed conventional regimes that are closely interrelated and provide an
incremental protection. Indeed, the three categories of migrants covered by these
conventions overlap both in law and practice. For instance, according to Conventions
No. 97 and No. 143, a refugee may fall within the definition of migrant workers and
inversely. Likewise, an undocumented migrant may be protected as an asylum-seeker, a
migrant worker, and a trafficked migrant at the same time.
These interdependent treaties still suffer from an uneven number of ratifications
when it comes to migrant workers. To contend, however, that migrant workers treaties
are irrelevant because they are not widely ratified by Western states is an urban
legend. No less than eighty-seven states have ratified one or more of the three
universal treaties devoted to migrant workers. States parties are from all
continents and encompass both countries of immigration and emigration (including
seventeen Western states). Furthermore, like many other fields, the international
framework of labor migration cannot be restricted to the specific conventions
adopted at the universal plane. It is also governed and reinforced by a vast network
of regional and bilateral treaties focusing on various aspects and by many general
conventions plainly relevant in the field of migration (such as those adopted by the
International Labour Organization or the World Trade Organization). Similarly, human
rights conventions are generally applicable to everyone irrespective of nationality
or immigration status and frequently include specific provisions on noncitizens.
Human rights treaties thus provide a common frame of protection that is applicable
to any migrants and supplemented by more specific conventional regimes.
Although IML is solidly anchored in customary and treaty law, soft law is made of a
more friable and flexible material. Though not a formal source of law, an impressive
number of nonbinding instruments have been adopted during the last decade to guide
and foster international cooperation. This development reflects the multilayered
nature of global migration governance involving a broad variety of actors at the
international, regional, and bilateral levels.
At the international plane, this multilevel governance is based on five superposed
layers of institutions and processes: the UN General Assembly (through the 2006 and
2013 High Level Dialogues and the 2016 New York Declaration for Refugees and
Migrants), the Global Forum on Migration and Development (a state-owned consultative
process organized outside the United Nations every year since 2007), the Global
Migration Group (established in 2006 gathering twenty-one UN agencies to promote a
better coordinated institutional response), international organizations that have
adopted their own soft law instruments within their respective albeit overlapping
mandates (e.g. the International Organization for Migration, the Office of the UN
High Commissioner for Refugees, the International Labour Organization, and the
Office of the High Commissioner for Human Rights), and states (as exemplified by the
2005 International Agenda for Migration Management and the two forthcoming global
compacts on refugees and migration).
The proliferation of nonbinding standards and consultative processes among a plethora
of actors with different and sometimes conflicting agendas remains however a deeply
ambivalent phenomenon: while acknowledging migration as a discrete field of
cooperation, soft law reflects the reluctance of destination states to commit to a
binding form of global governance.
Conclusion: Renovating IML
IML has been built in a piecemeal fashion through a longstanding process of
consolidation. Yet even the most skeptical positivists cannot fail to acknowledge
the significant body of existing rules governing migration. Its overall framework
still requires some imagination as the great variety of its rules and their
overlapping with other fields of international law may disturb or disconcert some.
But the heterogeneity of IML reflects the multifaceted dimensions of migration and
its cross-cutting character that transcends existing branches of international law.
Its superimposed rules remain closely interconnected. They make sense only when
understood in relation to one another.
The plasticity of IML opens up new avenues
as a global phenomenon.
positivism is inevitable to take stock of existing rules, IML can be deconstructed
through various perspectives (including critical legal studies, legal pluralism,
gender, and third-world approaches). IML is clearly an imperfect law that mirrors
the contradictions of our world composed by both independent and interdependent
nations. Although customary and treaty law regulate emigration and stay of migrants,
admission into the territory largely remains under construction. Refugee law still
constitutes an exception to immigration control but the former legitimates the
latter within a self-referential logic. This refugee law bias has relegated the
admission of migrant workers to domestic law with few encroachments from bilateral
and regional agreements.
IML cannot be held responsible for the skill and inspiration of its architects. But
the substance of international law constrains states as does the building material
of any other architects. Despite its shortfalls, IML is neither the fortress of the
state nor the labyrinth of migrants. Like any deconstructivist edifice, IML is an
iconoclastic assemblage that disturbs the tradition of order, harmony, and
stability. This provocative architecture produces an impression of controlled chaos,
a feeling of incompleteness and unease that have never been so acute than today.