An Opportunity for Progressive Development of the Law?

In one important sense, the COVID-19 pandemic has provided an object lesson in the nature of international migration law. This law has been portrayed by scholars as “a work in progress” and “substance without architecture.”Footnote ⁴ The status quo remains a system marked by failed multilateralism and legal fragmentation. The movement of people crossing international borders is often governed in harmfully chaotic ways. While there are several global fora for coordinating state responses to migration, the primary engines of this coordination to date have been regional and enforcement-centric. There is no global treaty which allocates or organizes migration flows. The new UN Network on Migration has fostered discussion in the midst of the pandemic and issued useful policy guidance, but it does not yet appear to have emerged as a significant locus for state cooperation on the response. It is likewise a truism to say that the rights of migrants, including refugees, have been incompletely protected by a fragmented patchwork of international institutions and norms. There is, of course, no widely-ratified treaty restating the rights of all migrants. These features have often intensified the most extreme of human consequences, even more so in times of crises like the current pandemic.

Against this background, scholars, including the two of us, have sought to promote a more integrated field.Footnote ⁵ This movement towards greater internationalization, of course, has been both vulnerable to nationalistic political contestation for the protections it has sought to reinforce, and subject to critiques for its shortcomings. From within a human rights framework, instruments like the new Global Compact for Safe, Orderly and Regular Migration have at times appeared ambiguous. On the one hand, they reinforce the propriety of addressing migrants’ rights as an objective of international law rather than the exclusive domain of national sovereigns. Yet, on the other, they arguably bear an equivocal relationship to existing rights and progressive rights jurisprudence, if only because they inconsistently reflect the content of treaty obligations.Footnote ⁶ Moreover, a vantage point more critical of the human rights frame generally has argued that pursuing the goal of “global cooperation,” as it has emerged in the migration context, has not redounded to migrants’ benefit, and instead has facilitated or at least legitimated schemes of border control and repatriation.Footnote ⁷ And, finally, there remains the vital question of the efficacy and enforceability of a globalized migration law. Notwithstanding these many flaws, we assert that the field, protean and fragmented as it has been, has also provided moments of opportunity and contestation to shape human rights discourse in a way that would value the humanity of migrants over the prerogative of states.

The pandemic cannot change, and may exacerbate, some of the biggest near-term drivers of migration: conflict, climate change, and socioeconomic dislocation. Yet we may also be on the cusp of a new era of state restriction and assertive management of migration, with states attempting to “health-proof” migration through public health-justified testing and surveillance regimes, limitations on entry, and expanded reliance on overseas processing—all of which will have consequences far beyond any dividend to health. Practically, these restrictions may radically limit the freedom to move, further concentrating the ability to migrate among the most structurally empowered and amplifying the law's excesses when it comes to policing the bodies and movement of migrants. Insofar as global migration regimes can check these restrictive trends, they have arguably never been more important. And there may be some grounds for optimism.

The work of civil society movements has long served as something of a counterbalance to the anemic investment by states in multilateral cooperation to facilitate migration and protect a baseline of migrants’ rights. Civil society has played a key role in agenda-setting in the field, both before and during the COVID-19 pandemic. Given a reevaluation of migration triggered by the pandemic, a comprehensive rights-based approach could be a vital grounding for any new migration law. Indeed, efforts to promote the crystallization of a uniform baseline of rights for all migrants may have a realistic potential to inform the post-pandemic migration law landscape. Two recent initiatives—one regional, one global—illustrate what might be possible.

Mere months before the declaration of the COVID-19 pandemic, the Inter-American Commission on Human Rights issued what is arguably the most expansive articulation of the rights of all migrants ever to be issued by an international body.Footnote ⁸ This document, the Inter-American Principles on the Human Rights of Migrants, Refugees, Stateless Persons and Victims of Trafficking (Inter-American Principles), was the result of a multi-year partnership between the Commission's rapporteurship on the rights of migrants and the International Migrants’ Bill of Rights Initiative.Footnote ⁹

The Inter-American Principles include several provisions urgently relevant to the challenges of human migration in the midst of the pandemic. Provisions guarantee cross-border justice and safe return. They also affirm rights to health, work, just and favorable working conditions, liberty, and security of person. While treatment of all eighty Inter-American Principles is beyond the scope of this essay, they reflect several progressive developments that anchor their position as a welcome innovation. One particularly interesting provision affirms a right of access to territory for child migrants regardless of whether they are refugees. Another recognizes a prohibition against discriminatory or arbitrary expulsion, affirming that individualized status determination is a necessary safeguard.

A second initiative emerged in the early days of the pandemic, when experts drafted Principles of Protection for Migrants, Refugees, and Other Displaced Persons (14 Principles).Footnote ¹⁰ This document articulates how rights—to non-discrimination, health, privacy, and non-return to harm, among others—apply to migrants. It also affirms that human rights treaty provisions ensuring basic guarantees in times of crisis apply to migrants. The 14 Principles hew closely to existing law and jurisprudence. But they still contain several notable provisions. For example, while recognizing state power to restrict movement where demonstrably necessary to the health of individuals and the community, the 14 Principles reflect a robust view of liberty of movement both between and within states. The Principles also use the language of “access to territory” and note that the law bars blanket exclusion of refugees and asylum-seekers without ensuring status determination procedures and protection from refoulement. The document was recently cited by the UN Secretary-General for the proposition that the human rights of people on the move in the time of COVID-19 have not been sufficiently taken into account.Footnote ¹¹ To date, more than one thousand experts (including both of us) have endorsed it as an authoritative articulation of the law.

Comprehensive rights frameworks are perhaps most useful as states consider wholesale overhauls of entire areas of law and policy, as may happen in response to the pandemic. As states consider these overhauls, civil society, including in partnership with human rights bodies at the regional and global level, should affirm soft law principles on migrants’ rights as a way for states to crystallize existing law and promote its progressive development.

Dispelling the Myth of Absolutist Sovereignty: A Role for Soft Law

If the substance and architecture of international migration law have reached an inflection point, where do we go from here? We argue that any normative shift should start with a reexamination of sovereignty and a commitment to a migration politics built from the perspective of interdependence. Civil society and activist movements centered on a universal baseline of rights for all migrants may offer one pathway for tempering a monolithic sovereignty and developing something else in its place.

Scholars have made a compelling case that the conception of unconstrained power to exclude as a fundamental attribute of sovereignty is most properly understood as an historically contingent development of international law, and at odds with earlier formulations,Footnote ¹² rather than natural and inevitable. Canvassing the history of international law suggests that the weight of the doctrine has arguably favored, not an unconstrained power to exclude, but a qualified right to migrate: the notion that some migrants in some cases have a right to enter long predates the contemporary legal order.Footnote ¹³ This indicates that there is important work to be done in pushing back against the incantation that, as a majority of the U.S. Supreme Court put it this past summer, “‘the power to admit or exclude aliens is a sovereign prerogative’” and a “fundamental proposition[].”Footnote ¹⁴ A framework of rights for all migrants can do that in ways both expressive and material.

More critically, other scholars have argued that the concept of sovereignty has always been tainted by inequality, as it “was not simply a European idea extended to peripheral areas [but] developed out of the colonial encounter.”Footnote ¹⁵ Indeed, that both critical and realist approaches cast the entire architecture of international law, and perhaps international migration law in particular, as a product of powerFootnote ¹⁶ complicates any prospect of international law's transformative potential, whatever the formal status of the sovereign power to exclude migrants.

In response to such long-standing theoretical debates, and relevant to a project of reimagining international migration law for the post-pandemic era, one of us has proposed an ethics of new organicism as a normative basis for a new international law of migration.Footnote ¹⁷ New organicism is grounded in the idea that the universe is intrinsically interconnected while also characterized by fundamental unpredictability. An ethics grounded in interconnection calls into question the basic presumptions of autonomy that undergird extant conceptions of sovereignty. By challenging absolutist conceptions of sovereignty, these transnational movements strengthen momentum towards a migration politics of interdependence. Among other things, any systematic reimagining of international migration law that is to be consistent with this ethical vision must abandon knee-jerk commitments to a vision of the absolute sovereign power of exclusion that have driven both law- and policy-making (and the violence and inequality which such exclusion works on migrants).Footnote ¹⁸ It is fitting that a new UN mantra for the post-pandemic era is that “no one is safe unless everyone is safe.”Footnote ¹⁹

We suggest that civil society and activist movements offer a potential site for building a politics of interdependence, through efforts like those described above, to create and leverage “soft law” that puts pressure on states and on the absolutist view of sovereignty in particular. As theorists of international relations have put it, “most international law is ‘soft’ in distinctive ways.”Footnote ²⁰ In the interstitial space of soft law, civil society and activist mobilization can be a powerful catalyst in the development of legal norms that constrain states as a matter of formal obligation. This property of political engagement in international lawmaking may offer transformational potential in the field of migration. The success of such engagement may serve as an index of the ability of civil society to develop a politics of migration reflecting interconnection and epitomizing the ethics of new organicism.

Such claims expose the fault lines in our international legal terrain. The assertion of “the right to have rights” on the part of migrants constitutes in some ways a fundamental challenge to, and in other ways a logical application of, an international legal system putatively organized simultaneously around sovereign states and individual rights.Footnote ²¹ It is a fundamental challenge in the sense that it claims the right, contra Hannah Arendt's original observation, as resting not in formal legal status recognized by states, but rather in the simple fact of humanity. Yet this challenge flows directly from the normative premise behind individual human rights. When civil society and activist movements push states to recognize such an underlying right, irrespective of citizenship or other formal immigration status, they, too, contest the boundaries of international legal inclusion and exclusion that Arendt identified. In doing so, they engage in a foundational form of political participation, through the “staging of a dissensus in which those who are deemed to lack speech make themselves heard.”Footnote ²² It is through this dissensus, this dissidence—an insistence on claims to humanity that some states would accord only on a more limited and exclusionary basis—that migrants’ rights movements can potentially reshape the contours of international law for the post-pandemic era.Footnote ²³