The Role of Human Rights Law in Constructing Migration Emergencies

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This post is part of the ESIL Interest Group on International Human Rights Law blog symposium on ‘The Place of International Human Rights Law in Times of Crisis’.

Migration emergencies are ubiquitous in today’s world.  News media report daily on the situation of Syrian migrants crossing the Mediterranean in rubber dinghies, of Central American mothers and their children traversing inhospitable deserts to reach the southern U.S. border, or of controversial efforts to keep at bay Afghans and Iraqis aiming for Australian shores in overcrowded ships.  The story line often runs as follows: this dramatic and unforeseen increase in migration is a crisis that risks overwhelming the receiving nations’ ability to process and absorb these migrants.  Media analysts and politicians suggest multiple factors provoking these crises.  Some foreground the life-threatening dangers that migrants face on their journeys.  Many more stoke fears about the national security and cultural threats that mass influxes present to migrant-receiving nations.  But there is very little critical analysis of the underlying assumption that these migrant flows are unexpected and unpredictable.  Even less is said about the role of international law, and human rights law in particular, in constructing these emergencies.

Migration “emergencies” are, contrary to their moniker, foreseeable outcomes of the contemporary international legal framework.  Human rights law relating to migration provides the backbone of this problematic legal structure.  Mass influx movements of migrants are predictable reactions to violent conflict and structural violence as well as to low-wage labor needs in destination states.  In situations of violence, the flow of migrants often increases steadily, offering sufficient lead time for destination states to prepare for these flows, but is instead initially ignored and then transformed into a “crisis” that grabs the public eye.  This was the case with both the influx of Syrian refugees into Europe, with the first refugee camps opening in Turkey in 2011, and the “surge” in Central American migrants, with steady increases beginning in 2011 of both levels of violence in the Northern Triangle and numbers of migrants arriving at the southwestern border of the U.S.  When it comes to low-wage labor migration, the need for labor in destination states is even more easily anticipated.  These cycles of labor migration have been ongoing for decades.

International law relating to migration plays a role in transforming these predictable and foreseeable migration flows into migration emergencies.  Many advocates look to international human rights law as a panacea for migrants.  While human rights law offers some protections to migrants, it provides very few pathways for migrants to obtain lawful status in a destination state, and no options for safe and lawful transit to that state.  Other subfields of international law relevant to migration, such as labor law, trade law, the law of the sea, and transnational criminal law similarly do little to regulate migration flows.  As a result, the architecture of international migration law incentivizes migrants seeking protection or low-wage employment to show up at the border of destination states to try their luck.  It should come as no surprise that these migrants at times show up in large numbers.

The Legal Construction of Crisis

The legal construction of crisis deserves exploration.  Anthropologists, political scientists, and sociologists have previously theorized the construction of crisis. Anthropologists focus on the social and cultural foundations of the concept of crisis, political scientists highlight its use in effectuating policy change, and sociologists examine the role of politics and the media in constructing migration crises.  Drawing from these analyses, international law plays a related but distinct role in the construction of migration emergencies.

Ample scholarship highlights the limitations of international law relating to migration, in particular the narrow categories available for lawful migration.  This literature accurately attributes migration emergencies to a variety of causes, such as environmental change, food insecurity, and state fragility.  But it often depicts international law as insufficiently responsive to migration emergencies rather than as a causal factor in the construction of crisis.  There is also a robust international legal literature examining the role of crises in the development of international law.  These analyses of how crises impact law are insightful and compelling, but do not assess how law constructs those crises.

What is the legal construction of crisis?  International law relating to migration provides a useful case study.  Taking as a starting point that culture, media, and politics each have a hand in transforming systemic problems into short-term “crises,” international law and legal institutions can be revealed to be constitutive of and constituted by these factors.  But international law has a further role to play.  Binding multilateral human rights treaties address only a narrow segment of issues relating to migration.  These treaties are responsive to the interests of a relatively small group of migrants.  There are very few mechanisms for progressive development of human rights law to increase its relevance to contemporary migration; new multilateral treaties face serious political obstacles and soft law is incapable of making structural changes.  International human rights law ossifies the global response to migration, perpetuating an outdated approach and insulating it from political challenges.

The Architecture of International Law Relating to Migration

International migration law might be described as a nascent project to integrate theoretically several subfields of international law that touch on migration: human rights law, humanitarian law, international labor law, trade law, transnational criminal law, and the law of the sea.  International and regional treaties as well as a large body of soft law and consultative processes regulate migration to some extent.  But the legal framework does not create mechanisms for safe transit of migrants from home to destination country, whatever their reason for moving.  International migration law is currently characterized by profound deference to national immigration laws, buttressing rather than overcoming exclusionary domestic and regional migration regimes.

Human rights law provides an exception to this rule: the principle of non-refoulement.  Remarkably successful, this legal norm dominates the field of international migration law.  Where did it come from?  It’s important to remember that the UN Convention Relating to the Status of Refugees was created as a temporary regime in the wake of World War II.  The Convention was designed to protect political dissidents escaping the Soviet bloc, Jews fleeing Nazi Germany, and others fleeing fascist regimes.  Extended beyond Europe and past the original January 1951 time limit by its Protocol in 1967, the Convention is now relied on to protect a broad range of migrants, from those fleeing domestic violence at the hands of an intimate partner to those escaping the clutches of brutally violent gangs.  In the meantime, the principle of non-refoulement has expanded through a variety of binding international and regional human rights instruments, from the United Nations Convention against Torture to the European Convention on Human Rights.

Apart from the narrow scope of protections it offers, human rights law’s principle of non-refoulement ignores profoundly important questions relating to migration.  Only individuals who can establish a fear of persecution due to their race, religion, nationality, political opinion, or membership in a particular social group are eligible for Refugee Convention protections.  The UN Convention against Torture expands this category to include non-refoulement protection to migrants at serious risk of suffering torture at the hands of or with the acquiescence of a government official.  (In contrast, the European Convention on Human Rights provides a broad prohibition on removal to torture and other cruel, inhuman and degrading treatment or punishment, whether perpetrated by government officials or by non-state actors.)  Migrants leave their home country for many complex and compelling reasons, including severe environmental degradation, dire poverty, or serious violence that is neither individually targeted nor involving state action.  International human rights law provides migrants who move for these reasons with no lawful options to protect themselves.  Moreover, the travaux préparatoires of the Refugee Convention reveal that the drafters anticipated and purposefully avoided the issue of mass influx, and refused to offer any lawful path to entry into destination states.

The Legal Construction of Migration Emergencies

This is the architecture that constructs crisis.  The field of international migration law is dominated by the human rights principle of non-refoulement, but provides little additional structure.  This legal framework encourages migrants to take risky journeys to reach the borders of destination countries.  International human rights law then requires these migrants to distill their complex reasons for moving into a claim of non-refoulement in order to obtain permission to remain.  The problem might appear to be simply one of an outdated legal regime that no longer maps onto current realities.  But there’s more to the picture than that.  The rhetoric of international human rights law helps to obscure domestic and regional exclusion regimes aimed at preventing migrants from reaching countries that might offer protection and employment.  In other words, international human rights law draws migrants with the possibility of lawful status for those who can enter the territory and establish refugee status while at the same time diverting attention from laws that provide inadequate options for migration and stringent border controls that render safe transit an impossibility.

In order to adequately address contemporary migration flows, international migration law is in need of substantial reform.  This approach must involve not only human rights law but also other areas of international law relevant to migration such as trade law, law of the sea, and transnational criminal law.  An effort to unify migration law might begin with a temporary regime, meaning a binding treaty with a sunset provision that could shape expectations around and build norms underlying a permanent treaty regime.  As a minimum, such a regime should be able to anticipate migration flows and coordinate responses.  It must provide migrants with safe passage to destination countries.  Both host states and migrants have an interest in creating a functional international legal regime that anticipates and regulates migration flows, preventing exploitation of migrants and putting an end to migration emergencies.

This blog post is based on a law review article entitled “Migration Emergencies,” forthcoming in Volume 68 of the Hastings Law Journal.  With many thanks to EJIL Talk! and the ESIL International Human Rights Interest Group for this opportunity.

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