A global system of human mobility
Like citizenship, migration is at the core of national sovereignty. In the absence of something like an International Convention on Migration or a World Migration Organization, the field is scattered and international migration law specialists have no shared focal point. The International Organisation for Migration also recognizes that international migration law is an umbrella term covering a variety of principles and rules that belong to different branches of international law, such as human rights law, humanitarian law, labour law, refugee law, consular law and maritime law.
According to Peter Spiro, this has resulted in a situation where
the Refugee Convention aside, states jealously continue to assert near-complete discretion with respect to the admission of noncitizens. The insulation of migration practices from international law has retarded the development of a centralized institutional apparatus, and the lack of that apparatus impedes doctrinal footholds from which to expand international law’s reach into the area […] State resistance to bringing migration under the ambit of international law is really about state resistance to the application of human rights law to migration. Beyond the principle of non-refoulement [the prohibition of returning refugees to a place where their lives may be threatened], there is almost no migration-specific, binding customary international law.
Alexander Aleinikoff has also rightly noted that the topic is often framed as about the management of international migration. Challenging this framing, he proposes that we start talking about ‘a global system of human mobility’. The word ‘mobility’ not only better describes the world we live in than ‘migration’ because it is sufficiently broad to encompass temporary migration, acquisition of citizenship and dual nationality as well as refugees; it also shifts the focus ‘from state mechanisms for control and regulation to individual agency and needs’. It is therefore a movement ‘from questions of how the state should regulate to questions of how to facilitate/organize human mobility’. Or put differently, the question is ‘to focus on the interests and goals of human beings, rather than on questions of whether and how immigration serves national interests and the preservation of nation-states’.
It is also worth noting that Aleinikoff highlights that ‘some of the most innovative and successful supranational approaches to mobility are occurring at the regional level’ (see our posts on ECOWAS, MERCOSUR and the Gulf Cooperation Council). As intraregional movement far exceeds interregional movement, the former should perhaps indeed be seen as the general case and the latter as the special case.
Author: Dr. Olivier Vonk