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Opeskin, Brian; Perruchoud, Richard; Redpath-Cross, Jillyanne --- "Conceptualising international migration law" [2012] UTSLRS 6; Foundations of International Migration Law, (Cambridge University Press, 2012), Ch 1

Last Updated: 16 February 2017

1. Conceptualising International Migration Law

Brian Opeskin, Richard Perruchoud and Jillyanne Redpath-Cross

  1. The Evolution of International Migration Law

Migration has been an integral part of human activity for as long as people have inhabited the earth. Whether moving as individuals, families or tribes, migration is an age-old response to the physical need for food, shelter and security, and the psychological need for adventure and exploration. However, while migration has marked all periods of human history, the phenomenon of ‘international migration’ had to await the reordering of the geopolitical landscape as a collection of territorial States in which governments had authority over settled populations residing within defined geographic boundaries.[1]

The Treaty of Westphalia (1648) was a critical turning point in establishing that new landscape, but for the next two centuries individuals still enjoyed substantial freedom in traversing the boundaries of the State. This reflected an attitude of hospitality to strangers that was inherited from ancient cultures and expressed through cosmopolitanism. This attitude can be seen in the scholarly works of the great writers of international law of the eighteenth and nineteenth centuries, who, with few exceptions, took a liberal attitude to the movement of people across borders for trade, commerce and other purposes.[2] If law in this early period paid scant attention to regulating migration, it was partly for the practical reason that the number of people involved was modest because modes of transport were confined to land crossings by foot or horse, and sea crossings by wind-powered sailing vessels. There were some notable exceptions to this laissez faire approach, but the circumstances in which law was invoked to regulate international migration were few.

Change came with the Industrial Revolution, which generated great interest in the New World and provided new means for getting there. There was substantial migration to the New World from Europe and Asia,[3] but it was the latter, particularly, that drew the attention of national laws. Fuelled by racist concerns about hordes of Asian immigrants, many States began to erect legal barriers to entry through legislative enactments, supported by sympathetic national courts. Famously, in the Chinese Exclusion Case, the Supreme Court of the United States in 1889 upheld the right of the legislature to exclude foreigners if they were considered dangerous to the peace of the country. Selectively invoking one of the great writers of international law, Emmerich de Vattel, the Court proclaimed:

‘It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to 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.’[4]

Notwithstanding the invocation of Vattel to support the stance taken under national law, the development of international migration law in this period remained rudimentary. Its potential was nevertheless recognised by some scholars. As early as 1927, Louis Varlez delivered a course of lectures at the newly established Hague Academy of International Law on international migration law, which he defined as the body of international norms applicable to migration.[5] Varlez summarised all elements of international law applicable to emigration and immigration at the bilateral, regional and multilateral levels, and highlighted areas that remained within the national jurisdiction of States. He suggested that migrants were more ‘international’ than ‘national’ in character and that they should be protected as such under international law, free from intervention by their own State.[6] Presciently, he concluded that ‘we are witnessing extremely lively and fertile legislative activity that makes it possible, better perhaps than for any other phenomenon, to follow the ever evolving life of the law’.[7] This conclusion is still valid today.

The corpus of international migration law developed in a slow and piecemeal fashion in the inter-war period. Studies on international migration law were limited in scope to areas of specific concern. One topic of considerable interest was nationality, leading to the Convention on Certain Questions relating to the Conflict of Nationality Law (1930) and the Protocol relating to Military Obligations in Certain Cases of Double Nationality (1935).[8] The distinction between nationals and foreigners was, and remains, central to the international law governing migration. States had a strong interest in clear rules on nationality which affected, for instance, their duty to admit members of their own community upon entry or return.

Another topic of concern was the plight of millions of European refugees who had been dislocated by the First World War or had fled the Russian Revolution of 1917.[9] Many had no nationality, or no means of proving nationality, and thus no capacity to access basic rights in the States in which they found themselves. The League of Nations sought to address the problem by establishing High Commissioners to provide substitute documentation (Nansen passports) and oversee their resettlement. Conventions concluded under the auspices of the League of Nations, such as those of 1933 and 1938,[10] became the forerunners of the legal regime for refugee protection necessitated by the Second World War.

A third topic of international interest in this period was the elimination of exploitation through forced labour, human trafficking and slave trading. These concerns were not confined to cross-border movement, but the international dimensions of these practices made them ripe for global action. The first steps to abolish slave trading had in fact come though national law much earlier, commencing with the United Kingdom in 1807,[11] and continuing through national abolitionist movements throughout the nineteenth century.[12] On the international plane, in 1924 the League of Nations established the Temporary Slavery Commission to review slavery in all its forms, which led to the Slavery Convention (1926).[13] Within a few years, the International Labour Organization (‘ILO’) had concluded a convention to tackle exploitation of forced labour, which has now been ratified by nearly all States.[14]

The depravities of the Second World War, with its orchestration of human misery on an unparalleled scale, ushered in a new order of laws and institutions which had a dramatic impact on the evolution of international migration law. The Universal Declaration of Human Rights (1948) (‘Universal Declaration’), while not a binding legal instrument, proclaimed itself as a ‘common standard of achievement for all peoples and all nations’ and became the kernel around which customary international law would later crystallise.[15] Several provisions of the Universal Declaration addressed the phenomenon of international migration, which was burgeoning in the post-war period – the entitlement to rights and freedoms without distinction based on national or social origin or other status (art. 1); the prohibition of the slave trade (art. 4); equality before the law without discrimination (art. 7); the right to leave any country and to return to one’s own country (art. 13); the right to seek asylum from persecution in other countries (art. 14); the right to a nationality and not to be arbitrarily deprived of one’s nationality (art. 15); the right to protection of the family (art 16); and more generally the right of everyone (including migrants) to social security, work, a reasonable standard of living and education (arts. 22–26).

The primary goal of the Universal Declaration was educative – to ‘strive by teaching and education to promote respect for these rights and freedoms’[16] – yet the massive social dislocations of the Second World War generated problems that required immediate legal solutions. In the post-war years, under the auspices of the United Nations, the international community concluded a raft of treaties addressing migration-related problems, including the plight of refugees (at first in Europe, but later more generally),[17] the situation of persons who had no nationality and were therefore stateless,[18] and measures to reduce statelessness.[19]

A range of international human rights instruments also emerged, addressing rights and freedoms to be enjoyed by ‘everyone’, including migrants. These included two international covenants that gave legal effect to the hortatory statements of the Universal Declaration.[20] Specific human rights treaties followed, directing attention to the problems encountered by particular classes of vulnerable persons (e.g., women, children, migrants) or arising from particular repugnant practices (e.g., racial discrimination, torture). Many of these specialised instruments reformulated norms that had evolved elsewhere – e.g., the Convention on the Rights of the Child (1989) proclaims the right of every child to registration at birth, a name and a nationality (art. 7),[21] restating principles articulated in the Universal Declaration. Significantly, the United Nations General Assembly adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990), which set out a comprehensive framework for protecting migrant workers across all migratory stages – from pre-departure, to transit, settlement and return.[22] However, this convention has not been widely ratified, especially by migrant-receiving States.

  1. The Evolution of International Migration Institutions

Despite realisation of the ‘fertile legislative activity’ anticipated by Varlez, new international law was not adequate in itself to meet the challenges posed by flourishing international migration. New international institutions were developed with diverse functions, ranging from operational support for migrants, to monitoring compliance with, and encouraging enforcement of, the new legal instruments. One of the first – the ILO – was established long before, by the Peace Treaty of Versailles (1919), and specifically included in its mandate the ‘protection of the interests of workers when employed in countries other than their own’ because exploitative labour conditions were thought to constitute a threat to world peace.

The challenges of refugees and displaced persons in the wake of the Second World War led to the establishment of two new bodies that remain the world’s principal migration agencies today. The United Nations High Commissioner for Refugees (‘UNHCR’) was established by the General Assembly in 1950 to provide international protection for refugees, with the optimistic goal of completing its three-year mandate and then disbanding. In practice, its mandate has been progressively extended to cover not only refugees but also internally displaced persons, stateless persons and other groups in analogous circumstances, and today it operates with a staff of more than 7,685 people working in 125 States. The International Organization for Migration (‘IOM’) was established in 1951 in similar circumstances but with a different mandate, namely, to help European governments identify resettlement countries for eleven million people uprooted by the war, and other migrants, and arrange their transportation and integration in new homelands. As with UNHCR, IOM’s scope of activities has broadened significantly, making it the leading international agency to advance the understanding of migration issues, encourage social and economic development through migration, and uphold the human rights and wellbeing of migrants. It is an intergovernmental organisation outside the United Nations system, has a membership of 146 States, and operates with some 7,300 staff working in more than 100 States.

The evolution of the international human rights framework has added many other bodies to the suite of those concerned with different facets of international migration, which are described in detail elsewhere in this book. Bodies established under the various human rights treaties, such as the Human Rights Committee and the Migrant Workers Committee, play a role in scrutinising state action, considering individual complaints about alleged breaches of the treaties, and providing interpretive guidance through ‘general comments’. The Human Rights Council – an organ of the United Nations General Assembly – has its own processes for strengthening the promotion and protection of human rights around the globe. These include universal periodic reviews of state compliance, and a number of thematic mandates (i.e., Special Rapporteurs) on migration, trafficking in persons, contemporary forms of slavery, and racism and xenophobia.

  1. International Migration Law Today

As the foregoing discussion indicates, international migration law has evolved markedly over the past decades. The literature highlights the substantial increase in the number of treaties relating to specific aspects of migration at the global, regional and bilateral levels, illustrating the growing importance of international law in this field.[23] International migration law has thus been transformed into a body of law whose richness and diversity are probably unmatched. From counter-trafficking to rescue at sea, from stranded migrants to regional consultative processes, there is a wealth of new norms relating to migration that call for a restatement or compilation of the law.

International law contains a fairly detailed set of norms, principles and rules relating to migration: a recent compendium of international migration law instruments, both hard and soft law but limited to universal instruments, spanned over nine hundred pages.[24] Included were instruments on human rights, labour law, nationality, statelessness, trafficking, smuggling, international maritime law, state security, detention, international humanitarian law, refugee law, migration and development, diplomatic and consular protection, minorities and international trade law.

This extensive list raises the question of the scope of international migration law. The editors of the compendium described the subject matter in these terms:

‘Currently, “international migration law” is an umbrella term for the complex web of legal relationships among persons, groups and States that together regulate the movements of individuals. It is a branch of law that has developed over time and, indeed, continues to develop with the ever-increasing need for international cooperation and regulation involving States, migrants and international civil society in general.’[25]

The main pillars of international migration law are, first, the human rights and duties of persons involved in migration, as defined in a variety of international instruments; and second, the principles and standards deriving from state sovereignty, among which are the right to protect borders, confer nationality, safeguard national security, admit and expel non-nationals and combat smuggling and trafficking. To this, a third pillar may now be added, namely, the law promoting cooperation among States to manage the international movement of people.

The evolution of international migration law in the past few decades has been extraordinary. Looking at the first pillar (human rights), historically migrants looked to their State of nationality for diplomatic or consular protection; now, while this type of protection remains important, human rights treaties have instituted protection mechanisms open to all, including migrants, at the universal and regional levels. The consequences of this development are not yet fully used by migrants and their representatives. Some aspects of the second pillar (state sovereignty) have been developed as well, particularly in the field of detention and exclusion, and the need to balance protection of human rights with security. The third pillar has witnessed important changes requiring States to cooperate more closely in almost every aspect of migration.

  1. A Search for Order

International migration law today is at a juncture that prompts reflection, if not introspection. On the one hand, the tremendous growth in the number and range of legal norms regulating international migration is undeniable; on the other hand, those norms do not present themselves in a coherent and integrated form. The tension has been reflected in colourful metaphors. Lillich once described the rights of non-nationals in international law as resembling ‘a giant unassembled juridical jigsaw puzzle’, albeit one in which ‘the number of pieces is uncertain and the grand design is still emerging’,[26] while Aleinikoff has labelled the field as one of ‘substance without architecture’, forming no coherent regime.[27]

To state that there is today both more and less international migration law than might be supposed,[28] that international migration law is an unassembled jigsaw, or that there are areas where international migration law could be better developed, does not affect its existence. In an irreducibly pluralistic world, international law develops in different directions, and so-called gaps are mere fields left to the authority and responsibility of States under national law. For the future, one may call for a more comprehensive and better-regulated framework for managing international migration, but existing international law already provides a good starting point for the development of a well-regulated system. The rubric ‘international migration law’ thus serves the function of piecing together various aspects of international law governing all facets of migration, ensuring internal coherence of norms rooted in, and borrowed from, branches of law as diverse as human rights, criminal law, humanitarian law and so on.

New types of law, or legal regimes, do emerge in response to new needs. Sometimes this happens quite rapidly, as happened with the emergence of space law once space flight became a technological reality with the launch of the world’s first artificial satellite in 1957.[29] More commonly, legal regimes emerge from the gradual accretion of law and practice over substantial periods of time. Since the Second World War – the most formative period of international migration law – international law has witnessed the rise of international economic law, international environmental law, international criminal law, the law of the sea, and many other areas that are now considered to be discrete and specialised domains. To ask at what point a set of legal norms becomes a special legal regime is much like asking an oyster when a grain of sand becomes a pearl: not only is there no defining moment, but the descriptive failure does nothing to diminish what has been created.

The questions may be asked: can international migration law be properly regarded as a self-contained legal regime or a special legal regime? The first question is easier to answer and draws a clear negative response. In a strict sense, the notion of a self-contained regime defines a system with special rules, quite distinct from general rules of international law, which includes mechanisms for countering breaches. Examples are the dispute settlement system under the World Trade Organization or the operation of diplomatic law, with its reciprocal privileges and immunities.[30] International migration law manifestly does not correspond to this notion. A broader notion of a self-contained regime was considered by the Permanent Court of International Justice in the Case of the S.S. Wimbledon, where the Court held that the regime regulating the passage of vessels through the Kiel Canal was fully governed by specific treaty provisions, without the need to resort to other sources of law or general public international law, which may have different rules.[31] International migration law would hardly fit into this enlarged concept either. In sum, international migration law does not have the characteristics of a self-contained regime within the meaning identified by international courts in these cases.

The question whether international migration law constitutes a special legal regime is more contested. An initial difficulty is that opinions vary as to the meaning of ‘regime’ in this context, and how it differs from the notion of a ‘branch’ or ‘field’ of international law.[32] Some consider the terms interchangeable; others opt for a restrictive definition that would confine a regime to a well-defined set of rules governing a given field of activity, with its own enforcement mechanisms, generally based on a treaty. In this regard, there is merit in Koskenniemi’s view that the solution should be functional rather than doctrinaire:

‘the widest of special regimes—denominations such as “international criminal law”, “humanitarian law”, “trade law”, “environmental law” and so on—emerge from the informal activity of lawyers, diplomats, pressure groups, more through shifts in legal culture and in response to practical needs of specialization than a conscious act of regime-creation. Such notions mirror the functional diversification of the international society or, more prosaically, the activities of particular caucuses seeking to articulate or strengthen preferences and orientations that seem not to have received sufficient attention under the general law.’[33]

We prefer to avoid the terminological debate and to regard international migration law as a distinct field of international law that deals with a specific but diverse subject matter. Its content encompasses all the norms, principles and rules that regulate international migration and the rights and duties of persons involved in migration. It is not autonomous in the sense that it sits outside the discipline of public international law. Rather, it has a reflexive relationship with public international law – absorbing the latter’s sources, structures and methodology, and reflecting back new developments through which the discipline of public international law continues its organic growth.

The search for order in international migration law also raises the larger question of global migration governance. Calls for better governance have often stemmed from the view that current arrangements reflect a chaotic web of international laws, institutions and processes, and that these tangled networks produce sub-optimal outcomes for sending and receiving States, and for migrants themselves. International laws comprise legally binding instruments (‘hard’ law) and non-binding declarations and principles (‘soft’ law), and even within the former there are layers of multilateral, regional and bilateral treaties in force for different States, on diverse topics, and qualified by different reservations. International institutions have diverse and sometimes overlapping mandates, different operational capacities, and span the full gamut of international, intergovernmental, non-governmental and civil society organisations. International migration processes have expanded exponentially, revealing major differences in their effectiveness, in addition to their disparate geographical, temporal and material scope.

The calls for better global migration governance are based on familiar arguments: globalisation has generated new problems that cannot be solved within national borders, and effective regulation requires an international response. Two potential solutions have come to dominate discussions about the way forward; both rely on more formal architecture to give greater coherence to international migration law. The first calls for a new supranational organisation – a World Migration Organization – to make effective, generous and humane global migration policy, free from the narrow political interests that typically motivate individual States.[34] Needless to say, supranational governance in the field of migration is, and will remain, resisted by States – even ‘soft’ governance limited to well-defined topics is difficult to put in motion at the global level. As a result, many now consider discussions on the architecture of supranational migration governance to be unproductive.

A second solution calls for an overarching instrument on international migration which would consolidate, in a single place, the substantial volume of extant principles that are currently dispersed across different instruments and different branches of international law. Such a treaty would set out a comprehensive framework of rights and duties of States and individuals, and provide supervisory mechanisms for monitoring and enforcement. It is probably unrealistic to expect such a treaty to encompass all three pillars of international migration law – human rights, state sovereignty and international cooperation – since the last especially is too diverse. There is merit, however, in codifying the human rights principles under the first pillar, notwithstanding the criticism that efforts would be better spent improving the implementation of existing norms.[35] Indeed, scholars have already begun the task of drafting an ‘International Migrants Bill of Rights’ as a ‘dynamic blueprint for the protection of the rights of migrants, drawing from all areas of international law, including treaty law, customary international law, areas of State practice and best practices’.[36]

  1. Structure of this Book

The variety of topics that fall within the rubric of international migration law presents an organisational challenge for a book that seeks to cover the foundations of the field. Scholarly books typically demand a linear treatment of their subject matter whereas, in reality, international migration law is a web of interrelated norms. It follows that many alternative orderings of the material may be justified, and we experimented with several of them before settling on the present structure.

This book seeks to lay down the foundations of the subject through central concepts and principles, before examining higher order problems. Readers who do not wish to read the Chapters sequentially should make liberal use of the tools provided to find a quick entry point to the material that interests them – the detailed table of contents, the index, the glossary, the tables of cases and international instruments, and the cross-referencing within each Chapter to relevant discussion elsewhere in the book. What follows is a quick guide to the succeeding Chapters.

Chapter 2 sets the scene by examining contemporary patterns of international migration – a matter too often neglected in accounts of the legal framework. International migration is a complex phenomenon and understanding it is made harder by the paucity of reliable data and the diversity of definitions used by the States collecting it. Migration in the twenty-first century is much more complicated than in previous periods of history, for while globalisation has made borders more porous to the movement of goods, capital, services and information, the movement of people across borders has become increasingly regulated. The Chapter examines the resultant patterns of migration from different perspectives – stocks and flows, global and regional, regular and irregular, temporary and long-term, voluntary and forced – and speculates about the migration pressures that will come from projected demographic changes over the next forty years.

Chapter 3 asks the fundamental question ‘Where does international migration law come from?’ and discusses the diversity and dynamism of sources of law in this field. Two sources of ‘hard law’ are treaties and customary international law – the former arising from binding legal commitments voluntarily undertaken by States and the latter from widespread state practice, when coupled with a belief that the practice is obligatory. The legal principles derived from hard sources have been supplemented by a rich fabric of ‘soft law’, namely the non-binding instruments (declarations, resolutions and guidelines) adopted by States and international organisations. In a field where States are often reluctant to constrain their sovereign power to regulate the cross-border movement of people, soft law has been a fertile ground for generating new international norms.

Chapter 4 explores two legal concepts that are fundamental to understanding the rights of individuals to migrate from one State to another, namely, nationality and statelessness. Nationality is the legal bond that exists between an individual and a State, signalling formal membership of that community and entailing obligations of allegiance by the individual and protection by the State. Nationality can be acquired by birth or naturalisation, and may be lost by renunciation by the individual, revocation by the State, or extinction of the State. Statelessness arises when a person is not considered to be a national by any State. Stateless persons – thought to number around twelve million globally in 2010 – are some of the most vulnerable and oppressed people in the world, but legal measures to reduce statelessness have met with only modest success.

Chapter 5 examines the power of the State to control its external borders as an attribute of its sovereignty. This key principle underpins the modern framework of international migration law and finds expression in the State’s power to admit persons into its territory and to expel them from its territory. However, the exercise of these powers is constrained by international law, including human rights norms. In relation to entry, States are required to admit their own nationals, must not return refugees to a territory where their life or freedom would be threatened, and must not discriminate on certain grounds (e.g., race) in the admission of non-nationals. In relation to exit, States must allow any person to leave the country (subject to limited exceptions), but they can expel non-nationals so long as international procedural safeguards are met. Today, the authority of States to regulate entry and exit is not disputed: the exceptions to the discretionary power of States are well defined, if not always respected in practice.

Chapter 6 turns to the human rights of migrants, which is a leitmotif that resurfaces throughout the book. International law gave protection to foreigners long before the dawn of the United Nations era (such as a State’s right to exercise ‘diplomatic protection’ in respect of a national injured abroad by a foreign State), but it is since the founding of the United Nations that there has been the most remarkable growth. The norms of equality and non-discrimination are directly relevant to migrants, but all international human rights norms are significant because they apply to every human being, and therefore include migrants. The Chapter surveys the major rights and freedoms in their application to migrants, including the specialised instruments that apply to migrant workers. It is clear that there is no shortage of beneficent legal principles, but many migrants continue to suffer discrimination, exploitation and persecution, revealing a significant gap between rights and reality.

Chapter 7 addresses one type of forced migration – the situation of refugees and asylum seekers. Born out of the massive dislocations in Europe from two world wars, the Convention relating to the Status of Refugees (1951) (‘Refugee Convention’)[37] establishes a legal framework for providing international protection to persons who cannot seek the protection of the State of their nationality because they have a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group’. The Chapter considers the criteria for refugee status and the rights afforded to those who qualify. The most fundamental right arises from the duty of States not to return a refugee to the frontier of a territory where his or her life or freedom would be threatened – the duty of non-refoulement. Despite the strength of the legal structure, the refugee system is a system under strain. The number of refugees is large – nearly ten million globally in 2010, one-quarter of all States have not ratified the Refugee Convention, implementation is atomised under a State-based system of compliance, and the burden of offering protection to refugees falls very disproportionately on the developing world.

Chapter 8 examines the legal protections afforded to women, children and other marginalised migrant groups, such as migrants with disabilities. Numerically, these groups are well-represented today in migrant stocks and flows, but historically they have been largely invisible because the paradigmatic migrant was considered to be an able-bodied, adult male who leaves home to seek his fortune or save his life. Addressing these marginalised groups within a single Chapter should not be taken to imply, however, that they are similarly and invariably vulnerable or disempowered. Individuals within each of these groups enjoy rights and freedoms under general human rights norms, but specialised instruments expand upon those rights in particular contexts. Thus, there are separate treaties addressing the rights of children, discrimination against women, and the rights of persons with disabilities, as well as overlapping instruments addressing migrant workers and other matters. The critical problem facing these groups of migrants is not a normative vacuum but a failure of political will to implement existing laws.

Chapter 9 examines the legal regimes that address human trafficking and smuggling. Although legal regulation of these practices has older roots, current efforts centre around two protocols that were concluded in 2000 as part of an international effort to combat transnational organised crime.[38] Trafficking and smuggling sometimes possess common features, but they are conceptually distinct. Trafficking is a criminal activity that typically involves the recruitment of persons by deceptive or other means for the purpose of their exploitation – whether for sexual purposes, sweatshops, agricultural or domestic labour, forced marriage or organ harvesting. The victim’s participation is non-consensual. Smuggling is a criminal activity that involves procuring the irregular entry of a person into a State of which he or she is not a national for financial benefit. This may be a consensual commercial transaction, but in practice the social and economic disadvantage that encourages people to participate in smuggling is similar to that which makes them vulnerable to trafficking. The clandestine nature of both practices makes it difficult to quantify the effectiveness of the protocols but they provide a helpful legal framework in the fight against these practices.

Chapter 10 considers a topic that has been largely sidelined in the migration literature, namely, how the legal regimes that regulate air and sea transport intersect with the web of norms that comprise international migration law. Difficulties arise because the regulatory regimes governing civil aviation and maritime transportation focus on delimiting rights and obligation in respect of commercial activities that have frequent contact with multiple States. In this environment, the human rights of the migrants who make those journeys are sometimes obscured. The Chapter examines: the mechanisms employed by States to intercept migrants before they reach the State’s frontier, the co-opting of commercial carriers in screening out irregular migrants through penalty regimes known as carrier sanctions, interdiction at sea, stowaways, smuggling by sea, and the rescue of persons in distress at sea. Although the relevant legal instruments are occasionally punctuated by humanitarian concerns, they also underpin the State’s sovereign authority to control its borders by deterring irregular migration by sea or air.

Chapter 11, and the following one, examine the theme of labour migration from different perspectives. A very large part of international migration is bound up with the world of work, and the area has spawned a large number of specialised legal instruments. Since 1919, the ILO has played a key role in drawing up international minimum labour standards aimed at safeguarding the rights of migrant workers, including conventions, recommendations, principles and guidelines. The United Nations has also responded with a core human rights document, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990).[39] Despite shortcomings in ratification and implementation of these instruments, an international rule of law framework exists for protecting the rights of migrant workers. This is much needed, given the increasing integration of the global economy and the rise of precarious forms of employment.

Chapter 12 continues the theme of labour migration in the specific context of temporary labour mobility under the regime of international trade law. Although it is infrequently discussed within the mainstream of international migration law, the topic is significant because it is the only multilateral legal framework that seeks to liberalise the international movement of persons. The mechanism for doing so is the General Agreement on Trade in Services (1994) (‘GATS’), which promotes different modes of trade in services between member States of the World Trade Organization. One such mode (Mode 4) is where labour crosses an international border to provide a service in another State. The potential of GATS Mode 4 to facilitate labour mobility is significant but is far from fully realised. International migration is enabled by GATS only to the extent that member States make mutual commitments to allow entry of particular classes of persons in specific sectors of the economy. To date, these commitments have been limited and favour high-skilled employment, to the disadvantage of developing States. The prospects of further trade liberalisation under the current round of multilateral negotiations appear to be bleak, but regional trade frameworks provide a more optimistic outlook.

Chapter 13 marks an important shift from the substantive content of international migration law to the global institutions and processes that facilitate the progressive development of migration norms. A complex array of international institutions and processes has emerged in recent decades in response to increasing globalisation, greater awareness of the need for coordinated international efforts to manage migration, and heightened attention by governments. Of the intergovernmental organisations, IOM is the only one whose mandate relates exclusively to migration, but bodies such as the Organisation for Economic Co-operation and Development have done much to advocate for greater global governance from the perspective of their members. Within the United Nations, there is a plethora of agencies whose work impacts on international migration at an operational, policy or strategic level. The work of UNHCR and ILO has already been mentioned. The involvement of so many agencies provides opportunities to focus on different attributes of migration, but at the potential cost of gaps and overlaps, inefficiencies and conflicting agendas. Beyond the United Nations, a range of global fora has emerged in recent years and spurred further dialogue among States, but whether they will result in real institutional change remains an open question.

Chapter 14 is the counterpart of Chapter 13 and addresses the growing number and range of regional institutions and processes that deal with international migration. A large proportion of international migration in fact takes place between States within confined geographic regions (e.g., Europe, Africa, Asia, Latin America), making regional arrangements especially relevant in finding solutions to shared challenges. The regional arrangements vary widely, from the highly developed free movement regime under the Schengen Agreement in Europe, to the non-binding fora that comprise the regional consultative processes, to the wider groupings that straddle geographical regions and are known as inter-regional processes. Many of these arrangements are of relatively recent origin and their contribution to fostering international cooperation on migration remains to be seen.

Chapter 15 closes the book with an examination of emerging legal issues in international migration. In a field that is fragmented and dynamic, construction sites abound, but three areas are selected for special attention – internally displaced persons, environmentally-induced migration and stranded migrants. The first of these is instructive for the way in which guiding principles have become accepted as the appropriate legal framework for addressing a situation of forced migration that falls outside the refugee system because the persons affected have not crossed an international border. Although not formally applicable to international migration, it can provide lessons for this domain. The second area, environmentally-induced migration, has become a topic of hot debate because of the anticipated impacts of climate change on human displacement and resettlement. There is broad consensus that the Refugee Convention does not cover so-called ‘climate refugees’, but commentators are divided on whether it should be amended to give it that coverage, or a new instrument created to address the protection and assistance needs of these persons. Another option is to adopt non-binding principles akin to those adopted for internal displacement. The third area, stranded migrants, covers those caught between removal from the State in which they are present and their inability to gain entry to any other State. More research is needed before it can be confidently asserted that the category of stranded migrants has sufficient empirical coherence and validity to justify the development of a new framework of law and policy.

* * *

This précis of the subject matter of this book indicates that the foundations of international migration law have evolved rapidly and drawn inspiration from diverse areas of international law. As one of the present authors has stated, ‘international migration law is perhaps the branch of law most resembling public international law – a dynamic law, in constant evolution, with occasionally blurred boundaries; a law as yet unfinished but necessary for understanding and managing one of the most pressing problems of our times.’[40]

[1] Friedrich Kratochwil, 'Of Systems, Boundaries, and Territoriality: An Inquiry into the Formation of the State System' (1986) 39(1) World Politics 27.

[2] James Nafziger, 'The General Admission of Aliens under International Law' (1983) 77 American Journal of International Law 804.

[3] Wilbur Zelinsky, 'The Hypothesis of the Mobility Transition' (1971) 61(2) Geographical review 219.
[4] Chan Chae Ping v United States ('Chinese Exclusion Case'), [1889] USSC 131; 130 US 581 (1889), 659.

[5] Louis Varlez, 'Les migrations internationales et leur réglementation' (1927) 20(V) Recueil des cours 165.

[6] Ibid 333–4.

[7] Ibid 343 (Editors’ translation).

[8] Convention on Certain Questions relating to the Conflict of Nationality Law, opened for signature 13 April [1937] LNTSer 109; 1930, 179 LNTS 89 (entered into force 1 July 1937); Protocol relating to Military Obligations in Certain Cases of Double Nationality, opened for signature 12 April 1935, 178 UNTS 227 (entered into force 25 May 1937).

[9] James Hathaway, 'The Evolution of Refugee Status in International Law: 1920-1950' (1984) 33(2) International and Comparative Law Quarterly 348.

[10] Convention relating to the International Status of Refugees, opened for signature 28 October 1933, 159 LNTS 3663 (entered into force 13 June 1935); Convention concerning the Status of Refugees coming from Germany, opened for signature 10 February 1938, 192 LNTS 4461 (entered into force 25 October 1938).

[11] Abolition of the Slave Trade Act 1807 (UK) (47 Geo III Sess. 1 c. 36), abolishing slave trading, followed by the Slavery Abolition Act 1833 (UK) (3 & 4 Will. IV c. 73), abolishing slavery.

[12] Mike Kaye, '1807-2007: Over 200 Years of Campaigning against Slavery' (Anti-Slavery International, 2005).

[13] Slavery Convention, opened for signature 25 September 1926, 60 LNTS 254 (entered into force 9 March 1927).

[14] Convention concerning Forced or Compulsory Labour (ILO No 29), opened for signature 10 June 1930, 39 UNTS 55 (entered into force 1 May 1932). In late 2011 there were 175 States parties.
[15] Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (10 December 1948).

[16] See also Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (Random House, 2001).

[17] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954); Protocol relating to the Status of Refugees, opened for accession 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

[18] Convention relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960).

[19] Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975).

[20] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

[21] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[22] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, opened for signature 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003).

[23] Richard Plender, International Migration Law (Martinus Nijhoff, 2nd ed, 1988) xiv.

[24] Richard Perruchoud and Katarína Tömölová (eds), Compendium of International Migration Law Instruments (TMC Asser Press, 2007).

[25] Ibid v.

[26] Richard Lillich, The Human Rights of Aliens in Contemporary International Law (Manchester University Press, 1984) 122.

[27] Alexander Aleinikoff, 'International Legal Norms on Migration: Substance without Architecture' in Ryszard Cholewinski, Richard Perruchoud and Euan Macdonald (eds), International Migration Law (TMC Asser Press, 2007) 467, 467, 479.

[28] Alexander Aleinikoff, 'International Legal Norms and Migration: A Report' in Alexander Aleinikoff and Vincent Chetail (eds), Migration and International Legal Norms (TMC Asser Press, 2003) 1, 2.

[29] In 1959 the United Nations established the Committee on the Peaceful Uses of Outer Space (COPUOS), which negotiated five international treaties that now form the core of space law.

[30] United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) (Judgment) [1980] ICJ Rep 3, [86].

[31] Case of the SS Wimbledon (United Kingdom v Germany) (Judgment) [1923] PCIJ (ser A) No 1, 3, 23–4.

[32] Vincent Chetail, 'Migration, Droits de l’Homme et Souveraineté: Le Droit International dans tous ses Etats' in Vincent Chetail (ed), Mondialisation, Migration et Droits de l'Homme: Le Droit International en Question, volume II (Bruylant, 2007) 13, 21.

[33] Martii Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, International Law Commission, 58th sess, UN Doc A/CN.4/L.682 (13 April 2006), 84–5.

[34] See Arthur Helton, 'Unpleasant Surprises Await' (2002) 58(6) Bulletin of the Atomic Scientists 94.
[35] Aleinikoff, above n 27, 478.

[36] Georgetown University Law Center, 'International Migrants Bill of Rights' (2010) 24 Georgetown Immigration Law Journal 395, 395.

[37] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

[38] Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003); Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2241 UNTS 507 (entered into force 28 January 2004).

[39] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, opened for signature 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003).

[40] Richard Perruchoud, 'Droit international et migration' (2005) 24(4) Refugee Survey Quarterly 81, 87 (Editors’ translation).

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