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When I started teaching international law more than twenty years ago, it was
still possible to be an international law generalist. In the U.S. legal academy,
the likes of Henkin, Schachter, Franck, and McDougal covered the full range of
public international law subjects. (Some even managed to stay on top of private
international law, too.) Today, being an international law generalist is
impractical; it's simply too difficult to keep current with the breadth
of international law. From the scholar's perspective, it's a case
of “be careful what you wish for.” A generalist international law
orientation used to be possible because there was so little of it, both on the
ground and in the scholarship. Those mid-century saplings—the various
distinctive fields within international law—have grown to mature oaks,
and expert knowledge of their many crevices and branches is beyond the capacity
of any single observer. Not only does international law defy individual mastery,
but the level of specialization now makes it difficult to talk across these
different areas. My colleague in international criminal law might as well be a
domestic family law person for purposes of professional points of connection. We
both attend the ASIL Annual Meeting, but we no longer really speak the same
Refugees dominate contemporary headlines. The migration “emergencies” at the southern U.S. border and the southern
borders of the European Union, as well as the “crisis” in the Bay
of Bengal, have drawn global attention to the dire inadequacies of the
international refugee regime, even as extended through various principles of
non-refoulement, in governing modern migration flows. Political
responses to these mass movements, from the Brexit vote to the election of
Donald Trump and his executive order halting the refugee resettlement process in
the United States, have threatened the viability of refugee law's
protections. At the policy level, numerous high-level stakeholders have convened
in different constellations, through the United
that these meetings have accomplished little thus far in terms of law
reform. The refugee law paradigm consumes so much space in the
imagination of international lawyers and policymakers that it is hard even to
begin to conceptualize an alternate approach to global migration law. The fear
of losing even the narrow ground staked out to protect refugees stiffens the
resistance to change. Proposals for reform tend to follow the tired old path of
suggesting ways in which the refugee definition can be expanded to include new
groups of migrants (ranging from climate change refugees to anyone fleeing
serious human rights abuses) rather than critically evaluating the structure of
global migration law more broadly.
To speak of a “global migration law” is challenging, perhaps even
quite provocative, in an era in which walls are being continuously erected at
borders and seas transformed into mass graves. The ambition of international law
often seems to be to rescue what can still be saved: the refugee regime for
example, or minimally decent treatment of migrants once under the jurisdiction
of a third country. A global law of migration, then, might be as much if not
more the law of obstacles to human mobility than a body of law premised on a
more fundamental commitment to freedom of movement.
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 stability. Initiated by the
French philosopher Jacques Derrida, the deconstructivist architectural movement
distorts the conventional oppositions between form and function, center and
margin, outside and inside.
Migration is already a significant global phenomenon, and it is likely to become
more so. According to a recent World Bank
report, there are two hundred million international migrants. The
study reports that “migration pressures” will continue “for
the foreseeable future.” It will take “decades” to close
income gaps between developed and developing countries; in 2015, the ratio
between the average income of the high-income countries and that of the
low-income countries stood at 70:1. A “well-documented demographic
divergence” will add further pressure: “Population aging will
produce large labor-market imbalances and fiscal pressures in high-income
countries as the tax base narrows and the cost of caring for the old
surges.” This increase in demand will complement an increase in supply.
“If current fertility and national employment rates remain as they are in
the developing world,” the Bank reports, by 2050 “nearly 900
million [will be] in search of work.” Climate change and disasters will
have a more modest impact on the international level, although “increased
drought and desertification, rising sea levels, repeated crop failures, and more
intense and frequent storms are likely to increase internal
migration.” And these numbers—measuring persons outside their home
country for more than a year—do not include hundreds of millions of
persons who cross international borders for shorter periods of time: tourists,
students, temporary workers, business persons, asylum-seekers.
Symposium on Framing Global Migration Law – Part II
Part I of this symposium on framing global migration law introduced broad conceptual parameters of a new field, looking back to its international law roots and forward to a new orientation beyond the strictures of refugee law. Part II looks to situate global migration law along a range of theoretical dimensions. Jacqueline Bhabha establishes the continuities of human movement in a historical context, modern and premodern. Far from representing a radical departure, the current migration “crisis” is consistent with massive migrations over the ages. Tendayi Achiume considers migration through the lens of colonization and decolonization. Out-migration from Europe was a core economic element of the colonization project; Achiume suggests that contemporary migration from former dependencies to metropolitan powers will correct co-dependencies that continue to advantage postcolonial powers. Focusing Achiume's lens on the problem of human trafficking, Janie Chuang complicates the binary depictions of economic migration that underpin contemporary international law. She suggests that global migration law's grounding in a migrant-centered perspective could help state actors to understand the structural causes of modern-day exploitation, enabling a shift from a crime control approach to a human mobility paradigm.
The long history of human migration sets the stage for a probing engagement with current migration law and the challenges of bringing it into alignment with contemporary needs and rights. If very large scale movements of people are a constant element of life on earth, should we reconsider the migration panic that has gripped political leaders and their publics, and should we reassess the responses that are being advanced? Instead of crisis should we be talking of continuum, instead of restrictions on foreigner entry should we be considering support for human ingenuity and opportunity? Despite its scale, should we consider ways to extend to distress-migration the facilitatory infrastructure we routinely apply to business or service related human mobility?
The European colonialproject involved the out-migration of at least sixty-two million Europeans to colonies across the world between the Nineteenth and first half of the Twentieth Century alone. It also involved movement in the reverse direction of human and natural resources, overwhelmingly for the benefit of Europe and Europeans. By connecting certain forms of migration in the present century to this mobility of people and goods in prior centuries, I seek to shift some of the fundamental commitments at the core of the international law, norms and discourse around global migration.
Our understanding of human trafficking has changed significantly since 2000, when the international community adopted the first modern antitrafficking treaty—the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol). Policy attention has expanded beyond a near-exclusive focus on sex trafficking to bring long-overdue attention to nonsexual labor trafficking. That attention has helped surface how the lack of international laws and institutions pertaining to labor migration can enable—if not encourage—the exploitation of migrant workers. Many migrant workers throughout the world labor under conditions that do not qualify as trafficking yet suffer significant rights violations for which access to protection and redress is limited. Failing to attend to these “lesser” abuses creates and sustains vulnerability to trafficking.
There is no corpus of law that is global in nature. Rather, “global” migration law is a collection of legal instruments situated at levels ascending from the subnational to the international levels. International law instruments contribute to the global governance of international migration at the international and regional levels. Two issues arise with respect to the effectiveness of these instruments: voluntary state accession and subsequent enforcement, even when states are parties to them. Domestic law regulates issues of international migration at the national and subnational levels. Enforcement is assumed to be more effective here. But this effectiveness varies according to the power of states, their levels of development and their capacities.
The field of global migration law looks beyond international law to incorporate all levels of the law, including the regional. This essay explores the regional regulation of mobility, which has indeed become a central subject of discussion and academic analysis. The expansion of human rights law coupled with the explosion of regional processes of integration are the two most important phenomena that have limited the state's capacity to restrict the entry of foreigners and their rights. It should come as no surprise that regional agreements facilitating mobility have proliferated and now involve around 120 countries, either at a bilateral or multilateral level. For one thing, most global migration is regional, whether in Europe, Africa, Asia, or Southern and Central America. In addition, regional instruments can be agreed on more rapidly and, in principle, introduce higher standards of protection and rights due to the more limited number of actors involved in the negotiations. There is, of course, huge variation across regions as to the degree of development of the various agreements, the categories of individuals entitled to mobility and equal treatment and their effective application and enforcement mechanism devices.
As a relatively well-defined subset of global migration law, refugee law and policy present important sites for contestation, agenda setting, normative pronouncements, and symbolic action. They are also an effective test of whether formal state obligations—in this case those outlined in the 1951 UN Refugee Convention—translate to protection in the weakly legalized environments in which most of the world's refugees reside. This essay asserts that they do not. Building on research and public engagement across African cities, this short contribution makes a three-part argument to that end. First, it considers categories by highlighting the narrow practical and analytical value of focusing on legal reforms and formal “refugee” policy as determinants of protection; given that legal status and documentation have only limited practical protection effects. Moreover, it points to the potential dangers and dysfunctions of a protection regime premised on people “performing” or “representing” refugeeness. Second, in considering areas for intervention in improving the protection of migrants, it calls for rescaling the legal approaches to migrant and refugee protection. Given the micro and translocal (often transnational or diasporic) processes informing refugees’ experiences, approaches need to be both more and less geographically targeted. Lastly, it calls for an intersectional approach to law and advocacy that more holistically and politically situates refugees and migrants within their social and regulatory environments. If nothing else, it asks analysts and advocates to take more seriously subnational political formations—formal and informal—as sites of policy formation and practice. In doing so it suggests that the most effective tools for addressing migrant and refugee vulnerability are often more political than legal. Moreover, within the realm of international and domestic law, jurisprudence in fields other than migration and asylum (e.g. environment, labor, or trade) may offer the most effective inroads into processes producing displacement or imperiling people on the move or on arrival. Given the confines of space, data is sparingly used for illustrative purposes.
start negotiations leading to an international conference and the adoption of a global compact for safe, orderly and regular migration in 2018. The agreement to move toward this comprehensive framework is a momentous one. It means that migration, like other areas of international relations, will be guided by a set of common principles and approaches.
Given the well-known and long-standing efforts of various high-income countries to prevent the development of a stronger and more effective global framework for the regulation of international migration, there are obvious reasons to be skeptical that the announced “Global Compact for Migration” will indeed bring about any major change. The ambition to achieve this “Global Compact” has, however, created a window of opportunity to rethink the current approach and debate alternative (or additional) mechanisms for protecting the rights of migrant workers.
Symposium on Framing Global Migration Law – Part III
A critical characteristic of migration is that it involves people in all their complexity, and with all their complex needs. Therefore, migration, perhaps more than any other field of international law, is difficult to separate as a body of law from human rights, trade, taxation, investment, health, security, etc. In this brief essay, I will describe two critical, and distinct, linkages that prevent us from cabining migration as a separate field. Both arise in the area of labor migration. Indeed, it is through linkage with other fields of international law, such as trade and investment, that states could establish international legal commitments to liberalize migration.
One story that can be told about the development of legal protections for certain forced migrants in international law is, in terms of the scope of protection, a progressive one. From expanded definitions of who is entitled to refugee-law protection, to the development of complementary protection in human rights law, the ambit of that which the law purports to cover has moved wider. This might be seen as part of the broader trend in the expanding coverage of international human rights law generally. Yet, a counternarrative can also be told: a diminished commitment on the part of many states, particularly economically advantaged ones, to inward migration, including of forced migrants, as evidenced in the expanded scope of non-entrée, “closed borders” measures, from visa restrictions to carrier sanctions, push-back operations, and an unwillingness to engage in numerically significant refugee resettlements to their countries. This backlash trend can also be identified in human rights policy generally. Just as the scope of human rights legal protection in general, and the legal protection accorded to certain migrants in particular, has expanded, so too states have become less willing to provide such protection.
[N]ationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual … is in fact more closely connected with the population of the State conferring nationality than with that of any other State.
Scholars of migration and citizenship will recognize the famous passage from the judgment of the ICJ in Nottebohm and perhaps be able to recite it from memory. But Nottebohm is nearing sixty-five, and so the inevitable question arises: is it time to retire the case? One impetus for the project of global migration law is the recognition of “current structures as historically contingent artifacts of a sovereignty-based global system in need of reform.” No artifact does more work in sustaining the current configuration than the use of citizenship (or nationality) as the technology for regulating transnational movement. Sooner or later, a conversation about the emergence of global migration law must grapple with international law's position on nationality, which brings us back to Nottebohm.
Recent years have witnessed the expansion of human rights standards relating to migrant domestic workers. This includes, in particular, the adoption of the 2011 International Labour Organization (ILO) Convention on Decent Work for Domestic Workers (no. 189), General Comments from UN human rights treaty bodies, and an expanding body of case law in domestic and regional courts. Migrant domestic workers have played central roles in these cases, engaging in the public sphere to advocate for law reform, and, in doing so, gradually expanding the field of global migration law. This essay describes the emerging recognition evident in the approaches of UN human rights treaty bodies that axes of discrimination intersect and, in particular, that migration status and gender can be significant to the enjoyment of rights. This integrated approach is evident in the case law of international human rights bodies adjudicating the rights claims advanced by migrant domestic workers. The case law on Article 4 of the European Convention on Human Rights (ECHR) shows the potential for such integrated approaches to move beyond the usual fragmentation of human rights, labor, and migration laws, but that potential remains limited.
This symposium has marshaled numerous insights regarding the emergence of a general field of inquiry within international law on the movement of people. To move into this conceptual terrain has required a certain amount of defiance of the conventional wisdom that questions of migration are within the purview of the sovereign state, and a matter of sovereign territorial prerogative. Yet this conventional wisdom manifestly no longer describes the times. There are now a host of limitations under positive international law on the prerogative of states to control rights of noncitizens to entry, residence, and work within their territories; and limitations on states’ rights to exclude or expel noncitizens therefrom.