International Migrants Bill of Rights Symposium

A Migrants' Bill of Rights—Between Restatement and Manifesto

Gerald Neuman — Thu, 01 Mar 2012 06:52:54 PST

These comments first provide a general perspective on the nature of the proposed International Migrants Bill of Rights (IMBR) and then offer some specific observations on the current draft, in particular its provisions on the subject of equality or nondiscrimination, including but not limited to Article 2.

Protecting and Promoting the Human Right to Respect for Family Life: Treaty-Based Reform and Domestic Advocacy

Ryan Mrazik et al. — Thu, 01 Mar 2012 06:49:42 PST

This article examines the right to respect for family life in international law, focusing on its underlying principles and explicit protections. The article identifies these legal norms so that drafters of international treaties, specifically the International Migrants Bill of Rights, and United States legal practitioners representing immigrant children can incorporate the right to respect for family life into their drafting and advocacy, thereby protecting and promoting this critical human right.

To encourage both high-level, international treaty-based reform and the grassroots domestic advocacy necessary to comprehensively protect and promote this right, this article provides specific ideas for incorporating the right to respect for family life into (1) the International Migrants Bill of Rights and (2) the United States immigration advocacy process.

Section II identifies the principles that underlie the right to respect for family life, especially as it relates to children: (1) that family is the natural and fundamental unit of society and (2) that maintaining the family unit is in the best interests of the child. It also discusses the individuals to whom the right to respect for family life typically attaches. Section III discusses examples of how courts and U.N. expert bodies, including the European Court of Human Rights and the United Nations Human Rights Committee, apply the right to respect for family life in child and family immigration contexts. Section IV analyzes the themes and reasoning in this case law.

Section V discusses specific ideas for further integrating the right to respect for family life into the current version of the International Migrants Bill of Rights. Section VI identifies ways in which United States-based advocates can incorporate the right to respect for family life into their advocacy efforts. Section VII provides a brief conclusion.

Avoiding Evasion: Implementing International Migration Policy

Justin Gest — Thu, 01 Mar 2012 06:47:27 PST

Despite the broadening range of international arbiters of global migration, the state—with its sovereign control of its territory and its subjection to the politics of its society—remains the only arbiter that oversees the actual interactions during which a proposed bill of rights would be followed. “As long as the nation-state is the primary unit for dispensing rights and privileges, it remains the main interlocutor, reference and target of interest groups and political actors, including migrant groups and their supporters.” This suggests that the normative persuasion and mobilization of even the most powerful non-state actors can only be in the ultimate interest of altering the practices of states.

Premised on this uncompromising truth, this article will first outline the debate about the role of international law in shaping national migration policies. It will next examine (a) the ways that states have been able to clutch their national sovereignty in matters pertaining to migration, and (b) the ways that international normative pressure has superseded state control. With these lessons of history and political structure in mind, this article will then consider the avenues of implementation of the proposed International Migrants Bill of Rights. The author argues that rather than portray the charter as a new act of international law that states should approve, it must be framed as a selection of fundamental entitlements that are lifted from existing regimes to which states are currently subject. In this manner, the Bill of Rights simply needs to ask for adherence to laws that state governments have already enacted. This resolution enables activists to circumvent the backyard politics that have poisoned efforts to coordinate globalized standards in the sphere of migration law.

From Status to Agency: Defining Migrants

Avinoam Cohen — Thu, 01 Mar 2012 06:45:19 PST

Migrants share an intricate relationship with the law. Identifying a person as a migrant implies, in ordinary language, that she has crossed legally defined territorial boundaries. In legal terminology, invoking the term migrant usually alludes to a particular legal status that entails a specific set of rights, distinguished from those of the citizen. Acknowledging the role of law in identifying and classifying people that move across national frontiers, migrants appear as legal constructs, structured by and within the law. Regulatory mechanisms designed to direct and control migration are deeply intertwined with the phenomenon they strive to govern. In itself, this circularity is not immanently flawed. Once the constitutive role of law is exposed, the self-referential nature of legal systems appears to be one of its inherent characteristics. Specific rules and standards are generated in light of particular conceptual foundations. Such conceptual underpinnings should be overtly recognized and scrutinized, given the implicit justification they provide for consequential normative outcomes.

Human Rights of Migrants: The Dawn of a New Era?

Ryszard Cholewinski — Thu, 01 Mar 2012 06:25:37 PST

The purpose of this article is to highlight a number of key legal and policy developments which have occurred since the turn of the twenty-first century and to reflect on how these have and may advance the protection of the human rights of migrants. This article is optimistic and forward-looking in tenor, although the generally positive developments discussed do not necessarily mean that abuses of migrants and violations of their rights are no longer taking place. Nonetheless, if ten years of relatively intense activity can be viewed as a sound measure of progress, there is some cause for optimism that a new era may well be dawning for the human rights of migrants and for human rights generally, through the growing recognition that adequately protecting one of the most vulnerable groups in many societies is today the true measure of our humanity.

Extreme Vulnerability of Migrants: The Cases of the United States and Mexico

Jorge A. Bustamante — Thu, 01 Mar 2012 06:23:04 PST

This paper deals with the notion of vulnerability of migrants, with respect to the realities of two countries, the United States and Mexico. The vulnerability of migrants is understood as a heterogeneously imposed condition of powerlessness. This is based on the premise that migrants are inherently vulnerable as subjects of human rights from the point of their departure as they leave home to initiate their migration. That is, any human being is less vulnerable at home than after she leaves home to become a migrant. The same applies to a sociological extension of the notion of home--a community of origin. The same person that migrates has more resources to defend or protect herself when she is at home prior to moving elsewhere than after the outward movement has taken place. The assertion is less salient, however, when one attempts to expand its logic to propose that the further away a migrant is from home, the more vulnerable she is. This might be more true for internal than for international migration, to the extent that the notion of migrants’ vulnerability is linked to their social and political relations with the members of the society within their actual location and to the corresponding national State. When linking to the latter, the notion of a migrant’s vulnerability becomes altered; in as much as the migrant becomes an international one, by virtue of entering a country other than her own. Thus, the initial assertion that the vulnerability of migrants is directly related to their geographical distance from home should be restricted to the case of internal migration. In summary, the crossing of an international border alters the relation between the migrant and the State or States of her destination, making it necessary to distinguish between the ‘internal’ (vis-a-vis the national State of origin) and the ‘international’ (vis-a-vis the State or States of destination) vulnerability of migrants. Such a distinction has to do with the different nature of the corresponding State’s accountability regarding the protection of human rights from which the notion of migrants’ vulnerability is derived. In the case of the “internal” vulnerability, the corresponding State of origin is accountable to its nationals (in accordance with its own national laws) in its duties to protect the human rights (usually in the form of protecting its citizens’ constitutional rights) of its subjects. In the case of “international” vulnerability, the State’s accountability, in this case in the destination country, is to the international community, usually represented by the United Nations or its agencies, in accordance with international law.

The Most-Favoured Nation Principle, Equal Protection, and Migration Policy

Tomer Broude — Wed, 29 Feb 2012 11:34:34 PST

This article discusses the theoretical interaction between the economically grounded most-favoured nation (MFN) treatment principle and the human-rights based concept of equal protection of migrants. In the multilateral law of international trade, MFN is an article of faith that lays a valid claim to having significantly contributed to the success of the trade-liberalizing and welfare-enhancing role of the General Agreement on Tariffs and Trade /World Trade Organization (GATT/WTO). Above and beyond its trade-related economic roles, when it applies to individuals of different nationalities, the logic of MFN also appears to generally conform to fundamental principles of equal protection of the law and non-discrimination under general human rights law.

The author addresses the question: to what extent should international law, as a normative matter, mandate the equal treatment of migrants, not in comparison to incumbents, but in relation with each other, i.e., with respect to migrants from other countries? Here it is treated as a mixed question of economics and human rights. This article provides some preliminary thoughts in this context, raises some corollary human rights-based issues with respect to a broad equal protection and non-discrimination rule in migration policy, and draws some general conclusions.

Soft Law and the Protection of Vulnerable Migrants

Alexander Betts — Wed, 29 Feb 2012 11:15:59 PST

Since the 1980s, an increasing number of people have crossed international borders outside of regularized migration channels, whether by land, air or sea. Policy debates on these kinds of movements have generally focused on security to the neglect of a focus on rights. In a range of situations, though, irregular migrants, who fall outside of the protection offered by international refugee law and the United Nations High Commissioner for Refugees (UNHCR), may have protection needs and, in some cases, an entitlement to protection under international human rights law. Such protection needs may result from conditions in the country of origin or as a result of circumstances in the host or transit countries. However, this article argues that despite the existence of international human rights norms that should, in theory, protect such people, there remains a fundamental normative and institutional gap in the international system. Rather than requiring new hard law treaties to fill the gap, the article argues that a “soft law” framework should be developed to ensure the protection of vulnerable irregular migrants, based on two core elements: first, the consolidation and application of existing international human rights norm into sets of guiding principles for different groups of vulnerable irregular migrants; and second, improved mechanisms for inter-agency collaboration to ensure implementation of these norms and principles. This article suggests that learning from the precedent of developing the Guiding Principles on Internal Displacement and its corresponding institutional framework can be particularly instructive in this regard.

Reaffirming Rights: Human Rights Protections of Migrants, Asylum Seekers, and Refugees in Immigration Detention

Eleanor Acer et al. — Wed, 29 Feb 2012 11:13:34 PST

The International Migrants Bill of Rights (IMBR) addresses migrants’ rights in a variety of contexts, and this paper looks closely at some of the most crucial rights that apply to migrants, refugees, and asylum seekers who are held in immigration detention.

Migrants, refugees and asylum seekers are entitled to a broad range of rights protections. These protections are spelled out in the provisions of core human rights treaties and regional human rights conventions that apply to all people, as well as in the specific conventions relating to refugees and migrants. While States have the authority to regulate migration, their immigration enforcement policies and practices—including those relating to administrative detention—must comport with the requirements of international human rights law.

International Migrants Bill of Rights

Fri, 03 Feb 2012 13:12:03 PST

The International Migrants Bill of Rights (hereinafter IMBR) is the result of a two-year collaboration between students at the American University in Cairo, Georgetown University Law Center, and Hebrew University in Jerusalem. The IMBR is 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. The IMBR posits a group of rights that are “universal, interdependent and interrelated,” and that populate the continuum from hard to hortatory. Yet even as the result projects a framework for migrants’ rights that is as yet on the horizon, it is also a vision that does and will intersect with the sovereign prerogatives and needs of States.

The IMBR responds to gaps in existing law. There is no single legal framework that unequivocally—and effectively—protects the rights of all migrants. Nor is there a single mechanism to coordinate global migration policy. And while protection of the rights of migrants is among the oldest areas of international law, increasingly the discourse of rights triggers concerns about the subversion of sovereignty. In the vacuum perpetrated by this status quo, migrants remain exposed to widespread human rights abuses and with nothing to invoke in their defense. The IMBR takes up this challenge and presents, in a single document, the rights of all categories of migrants. The accompanying commentaries trace the development, content and consequences of each right.

As a dynamic blueprint, the IMBR and commentaries will serve as a tool for migrants and civil society as well as a resource for legislators, policymakers and courts as they seek to respect, protect and promote the rights of migrants. In blending aspiration and binding law, the IMBR is envisioned as a set of soft-law norms. However, the IMBR has been carefully drafted to include both exhortations and obligations such that it can be incorporated into law. Following publication, the drafters envision a program of advocacy directed at States, intergovernmental bodies and civil society. This effort will be facilitated by the Georgetown University Law Center, Hebrew University and the Migration Studies Unit at the London School of Economics. In contributing to both a conversation and a movement, the drafters hope that the IMBR will help secure a global legal architecture for all migrants, on the basis of their humanity and dignity.