From Refugee Law to Global Migration Law

The idea of “international migration law” is not new, but it is receiving increased attention from a number of legal scholars. In some degree, they are responding to the domination of refugee law in discussions of international law relating to the movement of people. AJIL Unbound (the online edition of the American Journal of International Law) has recently published a “Symposium on Framing Global Migration Law,” in which Jaya Ramji-Nogales has a piece well-worth reading: “Moving Beyond the Refugee Law Paradigm.” (All the pieces in the Symposium are blog-length short.)

Ramji-Nogales identifies three major problems with migration law’s reliance on the refugee law framework (I have deleted footnotes):

“First, refugee law says nothing about transit from states of origin to states of destination. In practice, this means that the vast majority of migrants must show up at the border of their destination state in order to obtain the right to move. The obvious irony there is that these migrants must already have moved in order to become eligible for the right to move; this legal Catch-22 enables an entire economy of exploitation and abuse of migrants. Second, contemporary refugee law frames ‘worthy’ migrants narrowly, as vulnerable individuals in need of humanitarian assistance; it fails conceptually to engage with the migrant as a whole human being with labor needs and skills and broader social networks. Rather than tying migration into the global economic system, which depends on and creates migrants, refugee law introduces and reinforces a siloed humanitarian approach. This leads to the last and largest problem, which is that the blinkered focus on refugee law avoids engagement with larger and deeper systemic issues. There are many drivers of migration, most of which are deeply tied to global economic structures. The turn to refugee law distracts attention from income inequality, shifting the conversation from economics to humanitarianism. As a result, most solutions ignore crucial economic dimensions of migration, focusing instead on either criminalization of movement through a smuggling/trafficking frame or charitable humanitarianism through a refugee law frame. This shapes the conversation in ways that are unhelpful both for migrants and for migrant-receiving countries, and, as has been vividly demonstrated of late on the world stage, limits the effectiveness of migration law regimes, which are subject to being overwhelmed by mass movements of people.”

The relationship of refugee law to international migration law will be under scrutiny as the UN drafts two global compacts — one on migrants and one on refugees — over the next year and a half. This is a debate in which scholars across the disciplines should begin to engage.

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