Global Migration Law Research Articles

Legal pluralism and the production of (un)certainty in lived migration orders

This article builds on three of Keebet von Benda-Beckmann’s core concepts, namely, legal pluralism, social security and relational social theory, to reflect on the place of law in lived migration orders, both in the global north and in the global south. To do this, we build on three empirical case studies from our respective fieldsites in Germany, Belgium and the DRC. These cases illustrate how ‘thinking with Keebet’s work’ not only offers useful ‘sensitizing concepts’ for the empirical study of migration law and migration studies more broadly, but also provides a much-needed conceptual vocabulary to speak to and intervene in current debates in more doctrinal legal scholarship on global migration law. With this double aim in mind, we first build on a legal pluralism perspective to show how migration governance can be better understood through the prism of ‘lived migration orders’. We then suggest rethinking state sovereignty, citizenship, and individual human rights in light of historical and newly emerging relational configurations. Finally, we suggest a new avenue for reconceptualizing migration governance beyond rights-based categorizations of migrants by paying more nuanced analytical attention to situations of uncertainty and how they contribute to social (in-)security.

Remarks by Alex Aleinikoff

If we think about global migration law, refugee law is the place to start, since this seems to be the area in which the institutions, the norms, the system are the clearest example of a global migration law. Unlike most other migrants, refugees have their own convention and their own agency—the UN High Commissioner for Refugees (UNHCR) dating from 1950—and a set of regional agreements on refugees, and that has produced a solid foundation of rights, seventy years of practice, and billions of dollars a year in assistance, as well as coordinated international action on resettlement and return. I think it is fair to call it a legal regime on refugees.

Introduction to Symposium on Framing Global Migration Law – Part II

Part I of this symposium on framing global migration law introduced broad conceptual parameters of a new field, looking back to its international law roots and forward to a new orientation beyond the strictures of refugee law. Part II looks to situate global migration law along a range of theoretical dimensions. Jacqueline Bhabha establishes the continuities of human movement in a historical context, modern and premodern. Far from representing a radical departure, the current migration “crisis” is consistent with massive migrations over the ages. Tendayi Achiume considers migration through the lens of colonization and decolonization. Out-migration from Europe was a core economic element of the colonization project; Achiume suggests that contemporary migration from former dependencies to metropolitan powers will correct co-dependencies that continue to advantage postcolonial powers. Focusing Achiume's lens on the problem of human trafficking, Janie Chuang complicates the binary depictions of economic migration that underpin contemporary international law. She suggests that global migration law's grounding in a migrant-centered perspective could help state actors to understand the structural causes of modern-day exploitation, enabling a shift from a crime control approach to a human mobility paradigm.

Introduction to Symposium on Framing Global Migration Law – Part III

Part I of this symposium on framing global migration law introduced broad conceptual parameters of a new field, looking back to its international law roots and forward to a new orientation beyond the strictures of refugee law. Part II looks to situate global migration law along a range of theoretical dimensions. Jacqueline Bhabha establishes the continuities of human movement in a historical context, modern and premodern. Far from representing a radical departure, the current migration “crisis” is consistent with massive migrations over the ages. Tendayi Achiume considers migration through the lens of colonization and decolonization. Out-migration from Europe was a core economic element of the colonization project; Achiume suggests that contemporary migration from former dependencies to metropolitan powers will correct co-dependencies that continue to advantage postcolonial powers. Focusing Achiume's lens on the problem of human trafficking, Janie Chuang complicates the binary depictions of economic migration that underpin contemporary international law. She suggests that global migration law's grounding in a migrant-centered perspective could help state actors to understand the structural causes of modern-day exploitation, enabling a shift from a crime control approach to a human mobility paradigm.

The European Union and Migration: An Interplay of National, Regional, and International Law

If global migration law “includes all levels of the law,” then the European Union represents the most developed instance of the interplay of national, regional, and international law. Migration law in the European Union involves the interaction of EU Member States’ national laws, EU regional law, and international law. This complex interchange of different migratory legal regimes is the consequence of diverse, and sometimes conflicting, objectives and interests of the Union and its Member States, and the nature of EU law itself. This essay explores the impact of these three levels of the law on the four migratory regulatory categories—EU citizens, “desirable” third-country nationals, asylum seekers, and all other third-country nationals—and the three objectives associated with these categories. The predominance of one legal regime over another varies depending on the regulatory category of migrants and the objectives associated therewith. While describing the existing legal systems, the essay outlines their attributes and shortcomings, the most prominent being: a clear rift between the rights granted to EU citizens and to third-country nationals; EU Member States’ determination to reserve to their respective national territories a high level of national control over labor migration; and significant deficiencies of the EU asylum law which were brought to the surface by the recent refugee influx into the EU.

Transnational Mobility, the International Law of Aliens, and the Origins of Global Migration Law

To speak of a “global migration law” is challenging, perhaps even quite provocative, in an era in which walls are being continuously erected at borders and seas transformed into mass graves. The ambition of international law often seems to be to rescue what can still be saved: the refugee regime for example, or minimally decent treatment of migrants once under the jurisdiction of a third country. A global law of migration, then, might be as much if not more the law of obstacles to human mobility than a body of law premised on a more fundamental commitment to freedom of movement.

Global Migration Law and Regional Free Movement: Compliance and Adjudication – The Case of South America

The field of global migration law looks beyond international law to incorporate all levels of the law, including the regional. This essay explores the regional regulation of mobility, which has indeed become a central subject of discussion and academic analysis. The expansion of human rights law coupled with the explosion of regional processes of integration are the two most important phenomena that have limited the state's capacity to restrict the entry of foreigners and their rights. It should come as no surprise that regional agreements facilitating mobility have proliferated and now involve around 120 countries, either at a bilateral or multilateral level. For one thing, most global migration is regional, whether in Europe, Africa, Asia, or Southern and Central America. In addition, regional instruments can be agreed on more rapidly and, in principle, introduce higher standards of protection and rights due to the more limited number of actors involved in the negotiations. There is, of course, huge variation across regions as to the degree of development of the various agreements, the categories of individuals entitled to mobility and equal treatment and their effective application and enforcement mechanism devices.

Is it time to retire Nottebohm?

[N]ationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual … is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Scholars of migration and citizenship will recognize the famous passage from the judgment of the ICJ in Nottebohm and perhaps be able to recite it from memory. But Nottebohm is nearing sixty-five, and so the inevitable question arises: is it time to retire the case? One impetus for the project of global migration law is the recognition of “current structures as historically contingent artifacts of a sovereignty-based global system in need of reform.” No artifact does more work in sustaining the current configuration than the use of citizenship (or nationality) as the technology for regulating transnational movement. Sooner or later, a conversation about the emergence of global migration law must grapple with international law's position on nationality, which brings us back to Nottebohm.

The Possibilities of Global Migration Law

When I started teaching international law more than twenty years ago, it was still possible to be an international law generalist. In the U.S. legal academy, the likes of Henkin, Schachter, Franck, and McDougal covered the full range of public international law subjects. (Some even managed to stay on top of private international law, too.) Today, being an international law generalist is impractical; it's simply too difficult to keep current with the breadth of international law. From the scholar's perspective, it's a case of “be careful what you wish for.” A generalist international law orientation used to be possible because there was so little of it, both on the ground and in the scholarship. Those mid-century saplings—the various distinctive fields within international law—have grown to mature oaks, and expert knowledge of their many crevices and branches is beyond the capacity of any single observer. Not only does international law defy individual mastery, but the level of specialization now makes it difficult to talk across these different areas. My colleague in international criminal law might as well be a domestic family law person for purposes of professional points of connection. We both attend the ASIL Annual Meeting, but we no longer really speak the same language.

Migrant Domestic Workers and Continuums of Exploitation: Beyond the Limits of Antitrafficking Laws

Recent years have witnessed the expansion of human rights standards relating to migrant domestic workers. This includes, in particular, the adoption of the 2011 International Labour Organization (ILO) Convention on Decent Work for Domestic Workers (no. 189), General Comments from UN human rights treaty bodies, and an expanding body of case law in domestic and regional courts. Migrant domestic workers have played central roles in these cases, engaging in the public sphere to advocate for law reform, and, in doing so, gradually expanding the field of global migration law. This essay describes the emerging recognition evident in the approaches of UN human rights treaty bodies that axes of discrimination intersect and, in particular, that migration status and gender can be significant to the enjoyment of rights. This integrated approach is evident in the case law of international human rights bodies adjudicating the rights claims advanced by migrant domestic workers. The case law on Article 4 of the European Convention on Human Rights (ECHR) shows the potential for such integrated approaches to move beyond the usual fragmentation of human rights, labor, and migration laws, but that potential remains limited.

Southern Urbanism, Legalization, and the Limits of Migration Law

As a relatively well-defined subset of global migration law, refugee law and policy present important sites for contestation, agenda setting, normative pronouncements, and symbolic action. They are also an effective test of whether formal state obligations—in this case those outlined in the 1951 UN Refugee Convention—translate to protection in the weakly legalized environments in which most of the world's refugees reside. This essay asserts that they do not. Building on research and public engagement across African cities, this short contribution makes a three-part argument to that end. First, it considers categories by highlighting the narrow practical and analytical value of focusing on legal reforms and formal “refugee” policy as determinants of protection; given that legal status and documentation have only limited practical protection effects. Moreover, it points to the potential dangers and dysfunctions of a protection regime premised on people “performing” or “representing” refugeeness. Second, in considering areas for intervention in improving the protection of migrants, it calls for rescaling the legal approaches to migrant and refugee protection. Given the micro and translocal (often transnational or diasporic) processes informing refugees’ experiences, approaches need to be both more and less geographically targeted. Lastly, it calls for an intersectional approach to law and advocacy that more holistically and politically situates refugees and migrants within their social and regulatory environments. If nothing else, it asks analysts and advocates to take more seriously subnational political formations—formal and informal—as sites of policy formation and practice. In doing so it suggests that the most effective tools for addressing migrant and refugee vulnerability are often more political than legal. Moreover, within the realm of international and domestic law, jurisprudence in fields other than migration and asylum (e.g. environment, labor, or trade) may offer the most effective inroads into processes producing displacement or imperiling people on the move or on arrival. Given the confines of space, data is sparingly used for illustrative purposes.

Moving Beyond the Refugee Law Paradigm

Refugees dominate contemporary headlines. The migration “emergencies” at the southern U.S. border and the southern borders of the European Union, as well as the “crisis” in the Bay of Bengal, have drawn global attention to the dire inadequacies of the international refugee regime, even as extended through various principles of non-refoulement, in governing modern migration flows. Political responses to these mass movements, from the Brexit vote to the election of Donald Trump and his executive order halting the refugee resettlement process in the United States, have threatened the viability of refugee law's protections. At the policy level, numerous high-level stakeholders have convened in different constellations, through the United Nationsand other bodies; manycommentatorsagree that these meetings have accomplished little thus far in terms of law reform. The refugee law paradigm consumes so much space in the imagination of international lawyers and policymakers that it is hard even to begin to conceptualize an alternate approach to global migration law. The fear of losing even the narrow ground staked out to protect refugees stiffens the resistance to change. Proposals for reform tend to follow the tired old path of suggesting ways in which the refugee definition can be expanded to include new groups of migrants (ranging from climate change refugees to anyone fleeing serious human rights abuses) rather than critically evaluating the structure of global migration law more broadly.