The holiday travel season, the beginning being marked by International Migrants Day on December 18, is winding down. Even this traditional and commonplace form of travel is in some way facilitated or restricted by the human right to migration. Though primarily preoccupied by its connection with the features of the human right to work, migration encompasses all forms of border-crossing engaged in by natural persons, voluntary or involuntary. Beginning on January 24, the General Assembly of the United Nations will engage in a year-long series of meetings culminating in the second High-level Dialogue on International Migration and Development on October 3-4, 2013.
The content and contours of the international human rights law on the right to migration are moving targets: different rights attach to different classes of persons in different contexts. National practices carve out exceptions and qualifications from migratory rights based on grounds within a state’s sovereign prerogative, margin of appreciation, and police power: national security, border control, health, and immigration. These features of governance are often criticized and construed in different ways at the international level, but these powers are not facing any immediate or foreseeable risk from the international community.
The U.N. has recently called for wider ratification of international standards amidst a continuing discussion on migration. Common themes noted to arise in the application of migratory rights in contemporary contexts include,
“austerity measures that discriminate against migrant workers, xenophobic rhetoric that encourages violence against irregular migrants, and proposed immigration laws that allow the police to profile migrants with impunity” as well as an “ill-defined war against ‘illegal migration.’”
Generally, the regulation of transnational ingress and egress first depends on one’s citizenship status and the host of laws and subsequently turns on the applicable bi- or multi-lateral international legal instruments. The U.N. recognizes that the matter is extremely multifaceted, which has led to the promulgation of “softer” international standards on the regulation of migration. Of the three international legal instruments primarily addressing migration, two are protocols to the United Nations Convention against Transnational and Organized crime and pertain to the illegal trafficking of persons and the networks that facilitate the illegal movement of persons across borders. Only the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which entered into force in 2003, directly addresses the situation of migrant workers.
The Migrant Workers Convention does not add much to the preexisting human rights framework beyond the legal classifications provided by its definitional section; it mostly spells out how the protections embedded in core human rights relate to the situations of migrant workers and their families. The convention aims to streamline, inform, and render uniform the governmental process and ability of migrant workers to work and live across borders, but the variables in legislation and execution of relevant state laws proved problematic to the full realization of the goals of the Migrant Workers Convention.
U.N. Secretary-General Ban Ki-moon has identified several solutions to the persistent practices preventing greater development of human rights-based responses to migration as “decriminalizing irregular migration, setting up effective alternatives to immigration detention, and ensuring that the functions of public service providers such as nurses or teachers are kept strictly separate from those of the immigration authorities.” As accurate as these foci are, there are still deeper concerns.
In terms of effective legal responses to social problems, when dealing with an extralegally present person whom a state has little jurisdiction over beyond their physical body (i.e. not over their property or money, which may be located beyond the receiving state’s jurisdiction), responses and remedies traditionally employed through criminal law (e.g. detention) are the only way to maintain any level of effective present enforcement and future deterrence. The Supreme Court of the United States, the largest destination country for migrants, earlier this year reaffirmed the principle that “it is not a crime for a movable alien to remain in the United States” in Arizona v. United States.
What the Secretary General identifies as potential solutions still perpetuate the maintenance of classes of “others” in legal systems. The rights of these legal “others” remain different and subject to change based on determinations of status. Of course no one should be unduly deprived of liberty, have their cause languish in an unreasonably slow process, or be split from their family, but measures falling short of free movement necessarily require a great deal of resources, capacity, and case-by-case adjudication.
A human rights-informed alternative to detention would be a parole-type system where a monitoring regime is employed in degrees varying from telephonic check-ins to electronic monitoring, but this is a politically problematic proposition in many places. Further, the civil and political rights concerns of a migrant worker are addressed under such a system, whereas the economic, social, and cultural rights remain just as vulnerable.
The highly regulated seafaring industries, principally trade, are absolutely crucial to the world’s economies, yet agreement on uniform seafarer identity documents and shore leave for seafarers will be helped but not eliminated by the entering into force of the International Labour Organization’s Maritime Labour Convention, 2006. What has made this progress possible is the recognition of the link between realizing human rights for seafarers and increased economic efficiency for states and employers.
The U.N. is not arguing for completely porous borders where anyone can move and do as they please without state interference. Many studies champion the social and economic benefits offered by alternatives immigration detention, and these findings must be presented in tandem. Effective responses for sending states where people tend to emigrate from rather than immigrate to such as non-refoulement must also be simultaneously addressed, as well as other related practices such as reentry visa requirements for citizens. The High-level Dialogue has much to address and may prove fruitful, but the forest is currently being missed for the trees.