ASIL 2018 Recap: International Law and the Global Governance of Migration

By Rachael Smith

Professor Alexander Aleinikoff  (Zolberg Institute on Migration and Mobility, The New School, New York) started with a brief statement about the progress of the United Nations High Commissioner for Refugees (UNHCR).  He mentioned the seventy years of practice, and billions of dollars spent on resettlement, along with a legal regime for refugees, as signs of progress.  However, what he found troubling was the phenomenon of a “second exile”; that as per established refugee law, the first nation a refugee arrives in is where they must stay.  The legal options for migration to another nation are limited to none, and going back to their country of origin is not a viable option.  While there are legal arguments and policy reasoning for this, these do not address the possible negative impact on both refugees and the nations.  For example, the first country may be ill equipped for resettlement, e.g. Syrian refugees in Turkey.

The UN General Assembly has begun to address this weakness as part of their overall Global Compact on Refugees.  They have drafted for release mid to late this year a way for nations to share the responsibility as one way to address this issue.  Among the possibilities would be special passports that would allow refugees the possibility of travel to resettle.  In addition, there would be something akin to a “full faith and credit” of accepting refugees as part of economic development with other countries, such as in the case of Bilateral Investment Treaties (BITs).  This would balance the questions of national sovereignty in accepting refugees with being a second or third choice for the placement of refugees.  This would also allow those who have jobs and can self-support the ability to travel as a way to encourage self-sufficiency and economic development.  His last point was how this could create a more coherent regional approach to the resettlement of refugees, for not only the European Union nations, but could be used as a model for other Western nations.

migration

The panel for the “international Law and the Global Governance of Migration” session at the ASIL 2018 Annual Meeting.

Alice Thomas (Refugees International, Washington, DC) discussed how climate change could be both a major factor and one of many factors in migration.  In addition, climate change can be both a slow and a sudden process – for example rising sea levels and small islands or extreme weather that produces floods and landslides. Under the current legal framework, many people affected by climate change are classified as either economic migrants or internally displaced people – but not as refugees.  This has meant the approach has been an event-by-event system (e.g. in the United States the Temporary Protected Status granted to Haitians).  Currently, things are slowly changing but the focus has been more on adapting in place – how can nations help their own citizens stay in place (e.g. support to build homes that can withstand storm surges).

Michelle Leighton of the International Labor Organization (ILO) started her discussion with a description of the current conversation around immigration–that for many nations the general nature has been toxic.  She noted that most of the dialog is one of fear and an “us versus them” as a way to frame the debate.

She went on to say that the immigration debate is at a crossroads.  Nations can choose the path of seeing immigration as a benefit.  One way to do this is to focus on the immigration recruitment process for employment.  This is one way to combat issues like global human trafficking and the exploitation of workers.  This would also allow for better knowledge of the national and international employment recruitment processes.  This could mean better collection of data, along with a better matching of skill sets to the labor market needs.  This system could also foster better cross-border cooperation.  In addition, this could help navigate the sovereignty question by emphasizing that this is voluntary. She ended by noting how this would also create a path to social justice, as this issue is global in nature.  The ILO, with its 187 members, represents an already voluntary legal framework and can work in partnership with the UN.

Jean-Christophe Dumont (World Bank) started with how migration can be framed as part of broader issues of criminal justice and crime control.  The use of coercion and exploitation in the migration process has been linked to organized crime and terrorism– especially as they target the most vulnerable in a community, basically ensuring no reports will be made to a nation’s authorities.

Guest worker programs are one way to combat this issue.  Through them, the focus can expand to both skilled and unskilled labor.  This is important as unskilled labor is less regulated than the skilled labor market, which tends to be more highly regulated.  One current issue is that there is no one centralized institution to help monitor and regulate guest worker programs.  Depending on the nation, the regulatory framework may not even be present for local labor markets.  In addition, the current immigration and labor market debates and discussions are not about protections of workers.

One of the vulnerabilities of workers is the use of debt in the employment recruitment process as a way to exploit workers.  Debtors are vulnerable to a wide range of exploitation–both of themselves and potentially family members (either with them or in their home country).  Debtors are also seen as voluntary in their participation–despite the fact that their debt is of such enormity that it will likely never be paid off.

Jean-Christophe Dumont ended by discussing how the Organisation for Economic Co-operation and Development (OECD) has set trends for countries to co-operate by addressing immigration for the long term.  This would allow for better migration policies as well as innovation-–such as the use of Block Chain as a way to verify the identity of refugees.

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