Migration

by

Vincent Chetail

• LAST REVIEWED: 13 January 2014
• LAST MODIFIED: 13 January 2014
• DOI: 10.1093/obo/9780199796953-0038

Introduction

The role of international law in the sensitive field of migration is complex, ambiguous, and frequently neglected by contemporary international lawyers. Such a situation is probably due to the dual nature of migration, which is a question of both domestic and international affairs. On the one hand, admission of non-citizens within the territory of a state is traditionally considered as pertaining to the domestic jurisdiction of each state. This reflects the basic assumption of classical international law based on nation-states. Following this conventional stance, a state possesses by definition primary authority over its territory and population, and, by virtue of its sovereignty, it may therefore decide if and how it permits non-citizens to enter its territory. On the other hand, the movement of persons between states is international by nature, since it presupposes a triangular relationship between a migrant, a state of emigration, and a state of immigration. However, in both normative and political terms, this relationship has been frequently apprehended through the myopic lens of immigration states to the detriment of a more balanced and comprehensive approach in due accordance with the mutual interests of all stakeholders. The elusive concept of sovereignty is misleading for assessing the role of international law in the field of migration for two main reasons. First, from a historical perspective, migration has always been intimately connected to international law. It was even at the heart of the first reflections about the law of nations initiated by classical authors. Second, from the standpoint of contemporary international law, the universal normative framework governing migration consists of a wide variety of principles and rules belonging to numerous branches of international law (such as refugee law, human rights law, trade law, labor law, air law, law of the sea, criminal law, consular law, etc.). These principles and rules are supplemented by a significant body of regional and bilateral agreements. While international law does not establish a clear-cut comprehensive regime, an increasingly detailed—albeit eclectic—set of international norms constrains and channels state responsibility over migration. The amalgam of such norms composes the texture of what is sometimes labeled “international migration law.”

Textbooks

By contrast to international refugee law, textbooks of international migration law are less numerous. Indeed, despite the longstanding interest of the legal doctrine and the existence of various international norms governing the movement of persons, international migration law is not always acknowledged as a branch of international law in its own right. However, the last decade has witnessed a growing awareness of the need for international cooperation among states and international organizations. As a result of such expanding interest, several textbooks have been published for mapping this discrete and emerging field of international law. All of them are edited collections of essays, with one substantial exception, Plender 1988. This last book is a pioneer work in the field and constitutes an in-depth—though not updated—analysis of the key components of international migration law. By contrast, the subsequent edited volumes offer a more general presentation of the field. Sohn, et al. 1992 and Opeskin, et al. 2012 are introductory texts, whereas Aleinikoff and Chetail 2003 and Cholewinski, et al. 2007 are slightly more substantial.

• Aleinikoff, Alexander, and Vincent Chetail, eds. Migration and International Legal Norms. The Hague: T. M. C. Asser, 2003.

  DOI: 10.1007/978-90-6704-459-2

  This textbook offers a comprehensive overview and analysis of the international legal framework governing migration. Chapters written by international law experts from around the world explore a wide range of topics, including state authority and migration, freedom of movement, human rights of migrants, forced migration, labor migration, family reunification, trafficking and smuggling, and integration and nationality, as well as other relevant issues related to health and development.

• Cholewinski, Ryszard, Richard Perruchoud, and Euan MacDonald, eds. International Migration Law: Developing Paradigms and Key Challenges. The Hague: T. M. C. Asser, 2007.

  DOI: 10.1007/978-90-6704-473-8

  The growing interest surrounding international migrations has prompted the International Organization for Migration to publish another textbook with the purpose of updating and sometimes supplementing Aleinikoff and Chetail 2003. Besides topics already covered there, this book discusses additional themes, such as consular protection, biometrics, and remittances, as well as regional schemes of free movement.

• Opeskin, Brian, Richard Perruchoud, and Jillyanne Redpath-Cross, eds. Foundations of International Migration Law. Cambridge, UK: Cambridge University Press, 2012.

  DOI: 10.1017/CBO9781139084598

  Compared to the other textbooks, this one is primarily intended for those who are new to international law and seek a concise overview. This edited volume—also commissioned by the International Organization for Migration—comprises fifteen chapters dealing with the most representative issues of the field, including the sources of international migration law, nationality, labor migration, and regional and international processes.

• Plender, Richard. International Migration Law. Boston: Martinus Nijhoff, 1988.

  This pioneer textbook was first published in 1972 and reedited in 1988 in a revised version. It provides comprehensive coverage of the main topical issues, including the right to leave any country and the right to return to one’s own country, expulsion, nationality, migration for employment, refugees, and family reunification. While international in scope and nature, this book also analyzes a selection of domestic legislation from various jurisdictions.

• Sohn, Louis Bruno, and Thomas Buergenthal, eds. The Movement of Persons across Borders. Studies in Transnational Legal Policy 23. Washington, DC: American Society of International Law, 1992.

  This edited volume contains a brief restatement of the most basic rules and fundamental principles governing the transnational movement of persons. The relevant rules and principles are further specified by explanatory comments and examples from international instruments and relevant state practice.