Conceptualizing international migration law.

Author:Chetail, Vincent
Position:Proceedings of the 110th Annual Meeting of the American Society of International Law: Charting New Frontiers in International Law

This panel was convened at 9:00 a.m., Friday, April 1, 2016, by its moderator Peter Spiro of Temple University Beasley School of Law, who introduced the panelists: Vincent Chetail of the Graduate Institute of International and Development Studies; Janie Chuang of American University Washington College of Law; Karen Knop of the University of Toronto Faculty of Law; and Chantal Thomas of Cornell Law School. *


Migration is a matter of common interest that cannot be managed on a purely unilateral basis. Although migration is as old as humanity, it is now more visible than ever before. It affects every state whether as a country of emigration, transit, or immigration. This change in perception opens up new perspectives for conceptualizing international migration law as a global frame of analysis. There is nothing surprising in this--the movement of persons across borders is international by nature since it presupposes a triangular relationship between a migrant, a state of emigration, and a state of immigration.

Yet the role of international law is undermined by the fragmentation of legal norms scattered throughout a wide array of rules from numerous branches of international law (e.g., refugee law, human rights law, humanitarian law, labor law, trade law, maritime law, criminal law, nationality law). While reflecting the multifaceted dimensions of migration and its crosscutting character, the great variety of legal norms undermines their cogent interactions and effective applications. Encapsulating them within the generic label "international migration law" is thus critical for providing the broader picture and articulating existing rules within a common framework of analysis. In sum, the main virtue of international migration law is a methodological--if not pedagogical--one: it encourages a more systemic and cogent approach in apprehending migration as a topic of analysis on its own.

The very expression "international migration law" is not new. It was first used by Louis Varlez in 1927 in his course at The Hague Academy, before Richard Plender published International Migration Law in 1972 and reedited it in 1988. During the last two decades, a substantial number of textbooks have been published to map this growing field of international law. (1) With this aim, international migration law may be defined as the set of international rules governing the movement of persons between states and the legal status of migrants within host states.

However, international migration law does not supersede the other branches of international law, nor does it constitute a so-called self-contained regime. On the contrary, it is built on norms existing in different legal fields with the view to articulating, them in a coherent way. Similar to many other disciplines (such as environmental law or trade law), international migration law is primarily a doctrinal construction inferred from the sources and actors of international law. Although its epistemic community is growing, international migration law is still a work in progress and it is not always recognized as a discrete field of its own. However, even the most skeptical positivists cannot fail to acknowledge the significant body of international legal norms governing migration.

Revisiting migration through the sources of international law proves to be particularly refreshing for conceptualizing international migration law and highlighting both the unity and diversity of this field. The sources of international law not only underline that migration is deeply rooted in contemporary international law; they also provide an instructive mapping of the applicable legal framework. International migration law is grounded on three layers of norms respectively enshrined in customary law, treaty law, and soft law. Although they are mutually reinforcing, each emphasizes a particular aspect of migration and fulfills a specific function.

Customary international law provides the global picture of international migration law by endorsing and exhibiting the basic principles governing the movement of persons across borders. Customary international law unveils and regulates the three components of the migration continuum: departure from the country of origin, admission into the territory of a foreign state, and sojourn therein. (2) Regarding the first component, the customary law nature of the right to leave (with the usual lawful restrictions based on national security and public order) finds strong...

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