For all its specialisation in its contemporary phase after World War II and the granting of a special status to human rights, international law still lacks a comprehensive architecture for the protection of migrants. The only advanced regime relates to the protection of refugees, while the Convention on the Protection of Rights of All Migrant Workers and Members of Their Families is the least ratified treaty among the core instruments of human rights, not counting with the commitment of any major migrant-receiving Western State.
Furthermore, even though the processes of negotiation and creation of a Global Compact on Safe, Regular and Orderly Migration (by States) and a Global Compact on Refugees (by UNHCR), are under way, the creation of hard norms on either migration governance or the protection of migrants has not advanced and there is as of yet no consensus on the topic, as the USA’s resignation from the Migration Compact shows.
In addition, the focus of debates and proposals seems to lie with the governance of migration instead of the protection of migrants, thus, setting the spotlight on the phenomenon rather than on the individuals that create migration and are affected by it. This is reflected even in the definition of migrants’ specific needs for protection, given that they might differ if the person in question is a refugee, asylum seeker, environmentally displaced person, internally displaced person, humanitarian migrant, or economic migrant. It also fails to note that migration is a fluid process that affects persons differently and can take place in a continuum and during different stages of the life of the same individual.
Notwithstanding such complexity and fluidity, there is a need to build a comprehensive framework for the protection of migrants encompassing principles and norms that provide greater legal security and stability to the system, as well as rules and decision-making procedures that give it flexibility and greater enforceability – i.e. a framework that involves law and that structures the debate from a rights perspective.
This framework should have the protection of migrants as a key element and it needs to aim at guaranteeing their rights and means to demand and enforce them. It is not disputed that migration has a direct relation with sovereignty, which was until recently deemed absolute. However, with the advancement of international human rights law, sovereignty has begun to be flexibilised to allow for the protection of human beings, who have, in turn, gained a key role in international law. In terms of migration, this protection is relevant for two main reasons. On the one hand, migrants, like all other human beings, are holders of human rights. On the other hand, mobility can affect the traditional protection granted to individuals, which has a strong connection to nationality and needs to also adopt a logic of “location”. States in general have different norms for nationals or foreigners, but they are obliged to protect all human beings under their jurisdiction, including migrants. One can see, then, that there are different pulls in the regulation of migration, but that a protective framework can guarantee respect for both sovereignty and the protection of the human dignity of migrants, thus, tipping the scale towards a balance between State interests and human needs as well as regulating migration while protecting migrants.
With record numbers of both voluntary and forced migrants, it is high time that international law finds better ways to create this framework and to deal with migration. The following four strategies, along with a continued quest for binding treaties, can serve as a framework for the pursuit of a deeper and more adequate regime for the protection of migrants.
The first strategy is to embrace the protagonism of migrants in migration and thus shift the aforementioned focus from the regulation of the phenomenon to the persons in it. To the extent that migration is a phenomenon originated by migrants – who ought to be perceived first as human beings, and then as migrants – it is their conditions and vulnerability that must be primarily taken into account for the construction of all protection regimes in migration governance. This would allow for the adoption and implementation of a human rights approach to migration that regulates the phenomenon through the needs of those creating it and establishes a sense of complementarity between international human rights law and the migration protection framework. It also results in the need to respect all the human rights of migrants, and to consider the unique circumstances of each person, as well as recognise and respect specific vulnerabilities. Being a migrant is already a vulnerability, and new lawyers of vulnerability can be added to this during migration. In addition, pre-existing vulnerabilities, such as those related to age (both for children and the elderly), gender and sexual orientation and disabilities can impose even more challenges during mobility. All of these factors need to be taken into consideration and be reflected in international law’s framework for migration.
The second strategy is enhancing the dialogue between existing international regimes, including international humanitarian, refugee and labour law (among others), with international law regarding the governance of migration. Despite normative fragmentation in different regimes of protection, and possibly diverse migratory status, international law is the background for regulating the international scenario, which includes the spaces through which migrants circulate and (at least complementarily) the spaces in which they live. It sets an encompassing background of regulation that coexists with specific regimes of protection. There are, thus, both general and specific norms in play, which relate to this common background, derive from it and have entered into dialogue with it (as well as with the other regimes in the same constellation). Having international law as this background allows for the application of institutions of one regime to situations in others (such as, for instance, the implementation of non-refoulement in all cases where there is a risk of serious human rights violations), thus extending the protective framework. The convergence of regimes is aimed at the protection of human beings, with the goal being the general protection for all migrants alongside specific protection for specific groups of migrants when needed.
The third strategy would be adopting less formalistic approaches on the dealing with migration by international law. This strategy derives from two factors. First, the aforementioned difficulty in creating hard norms of international law for migration governance – a situation that coexists with the need for the creation of a protective framework for migrants. Second, the necessity of increased participation of non-State actors in international law. This strategy would entail, regarding the first issue, the adoption of soft law. Insofar as these are non-binding instruments, cooperation under soft law allows commitments around affinities (notably around the common interest of the protection of human dignity), without highlighting the differences of sovereignty, power and interests. Soft law should add to existing hard law in expanding protection and should never diminish it, and could assist in the development of new norms that encompass the two previously mentioned strategies. In relation to the latter issue, it would call for the involvement of non-governmental stakeholders (such as civil society organisations, academia, and the private sector) in the governance of migration in a “whole-of-society” approach with a responsibility-sharing foundation, a perspective already found in the New York Declaration for Refugees and Migrants. As the benefits of migration can be felt by society as a whole, such a fact must awaken a sense of social responsibility for migrant protection, not a sense of burden-sharing that privileges States’ interests rather than protagonising migrants as human beings.
The fourth strategy would be to use regionalism to aid the development of stronger cooperation and norms. Just as each of the four strategies should coexist with the pursuit of hard norms on migration and on migrants’ protection, so should regionalism coexist with multilateral and international efforts. Regionalism can expand protection in an international scenario where, as seen, consensus on migration seems weak, and that regional cooperation may be easier to achieve, insofar as cultural values and affinities are more easily identified. Furthermore, history shows that the proximity of borders facilitates transit and decreases travel costs and risks, which, together with affinities in culture and values, has reinforced the alignment in these regional spaces, as shown by regional documents such as the Cartagena Declaration and the Convention Governing the Specific Aspects of Refugee Problems in Africa. The proposal is to find ways to enhance migrants’ protection, and combining regional initiatives with global ones gives this goal a better chance.
These four strategies can give coherence to international law dealings with migration through a common language of protection. In addition, as they are not mutually exclusive among themselves nor with the search for international hard norms for the protection of migrants, and do not involve radical changes in international law but rather the use of already existing and advocated for mechanisms, these four strategies are good pathways for international law to deal better with migration and, most relevantly, with the protection of migrants.
This blog post is a shortened version of an article by the authors which was published in Volume 5, Issue 1 of GroJIL (September 2017). The full article can be found here.
Liliana Lyra Jubilut has a PhD and Master in International Law from Universidade de São Paulo and an LLM in International Legal Studies from NYU School of Law. She was a Visiting Scholar at Columbia Law School and a Visiting Fellow at the Refugee Law Initiative at the University of London. She has been a Lawyer at the Refugee Centre of Caritas Arquidiocesana de São Paulo, and a UNHCR-Brazil Consultant. She is a Professor of the PhD and Masters in Law Programme at Universidade Católica de Santos, where she co-coordinates the research group ‘Direitos Humanos e Vulnerabilidades’ and has been a part of the coordination of the UNHCR Sergio Vieira de Mello Chair since 2013. She has been working with refugees’ topics since 1999.
Rachel de Oliveira Lopes is a PhD Candidate in International Law at Universidade de São Paulo. She has a Master in International Law from Universidade Católica de Santos. She is a member of the research groups ‘Direitos Humanos e Vulnerabilidades’ (which has as one of its research lines ‘Human rights and refugees’) and ‘Governança Global e Regimes Internacionais’ both at Universidade Católica de Santos. She is a member of the UNHCR Sergio Vieira de Mello Chair at Universidade Católica de Santos. She is a Federal Attorney specialized in social security rights and has been researching migration issues.