International Migration Law: License to Discriminate?

The story of international law and migration commonly begins with the observation that states have the sovereign right to deny access to non-nationals. This statement is then qualified with the observation that there are some exceptions to this rule. Refugees and other people who may run serious risks if returned to their country, or are otherwise expelled, and in some cases people requesting admission on the basis of family reunification, should be allowed access. The sovereign right to exclude is presumed to be inherent and ‘age-old’. That impression is mistaken. Immigration control is a relatively recent phenomenon. Until late in the 19th century, political demographic conditions made population growth desirable, so immigration was welcomed. It was only with the desire to limit Chinese immigration into the US and Australia, a desire motivated by racist considerations, that immigration control and the passport regime became the new ‘normal’, and that the reference to the ‘age old’ sovereign right to control immigration began to gain force.

Recently, a number of countries have made headlines because of innovative immigration policies designed to attract investors and entrepreneurs. Spain, Chile, Canada, and others are now conceiving of immigration policies within the broader context of increasing their economic competitiveness. Many other countries already offer benefits to so-called ‘knowledge migrants’. What makes this new wave stand out is the overt effort to compete with other countries for talent and investment. One could almost forget that fear of immigrants has been the main driving force behind most immigration policies around the world. Although government officials in many countries experiencing immigration may be under pressure to implement policies that bring immigrant numbers down, immigration policies have typically also been made with an eye to economic sectors eager for access to certain workers, whether skilled or unskilled. In other words, immigration policies cater not only to those fearful of (large scale) immigration, but also to those in need of specific forms of labor.

As such, migration law is not just about putting up barriers to migrants but also about selecting among potential or prospective migrants. In the Dutch political context the term of art is kansarm (poor in prospect) or more broadly in public opinion debates kansloos (prospectless). Kansarm even made it into the 2010 coalition agreement, which also exempted so-called knowledge-migrants (kennismigranten) from various measures deemed to make immigration more difficult; the factor used to determine whether someone is a knowledge-migrant is a minimum level of income. Blunt as Dutch political discourse may be, public discourse on immigration in most immigration countries often takes such distinctions for granted. Take for instance the so-called ‘dreamers’ that the Obama administration has aimed to assist: young people with an education, preferably a degree, as opposed to others whose future prospects do not evoke ‘dreams’. Though not (yet) law, the Dream Act would regularize the situation of up to 1.8 million non-nationals. Aside from the absence of a criminal record, the main requirement is some form of educational degree. Advocacy for this bill emphasizes that it will be good for the U.S. economy. In short, undocumented non-nationals who represent economic worth have an easier job justifying their presence.

And so, immigration policy has never truly abandoned its discriminatory origins; it has merely reframed them. ‘Civilization’ was the self-evident justification for discrimination, even when it was a clear euphemism for race and ethnicity. Now it is ‘economic worth’ even as many countries are also imposing ‘culturalist’ (as opposed to racist) integration or assimilation requirements, such as the adoption of ‘Western values’. Either way, by allowing states to discriminate, international law allows for a differential regime of rights that gives some people more mobility than others. From the perspective of international migration law, this differential regime of rights is allowed, even as some have argued that this is a problematic proposition. Moreover, it would not seem easy to challenge the sovereign right to discriminate using international human rights law, although some are making powerful arguments in this direction.

However, this ‘license to discriminate’ does not sit well from certain normative perspectives. From a humanist and egalitarian perspective it seems wrong to divide people into ‘dreamers’ and ‘prospectless’. After all, “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Even so, normative questions of migration control go to what many people see as the heart of national legal and political sovereignty. The distinction between ‘us’ and ‘them’ seems too foundational to question, for without it the idea of national sovereignty seems a mere abstraction. However, the ‘us’-‘them’ distinction does seem to conceal the fact that control of mobility is aimed at the poor or prospectless, and less so about ‘us’ and ‘them’. Even though the international community of states has not yet considered it necessary or desirable to articulate common norms governing the admission of aliens, the moral questions raised by this type of discrimination remain salient. As ”talented” migrants obtain benefits even over nationals, as do knowledge migrants in some European countries in the form of tax benefits, while those “without prospect” are detained and deported, the discrimination that migration policies produce will continue to be a sore spot on the international normative landscape. The boatloads of refugees who drown in the Mediterranean are but a symptom of this situation.

International (migration) lawyers should question the extent to which international law is a valid expression of the humanist-egalitarian tradition that is continuously put forward as its contemporary foundation. If international law is to be supported as a progressive force for dignity on the basis of human equality, and if international lawyers want to think of their project as one in which international law is ‘humanized’, then this normative dissonance needs to be, if not resolved, then at least acknowledged in order to be addressed.