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Cambridge University Press.
International
Migration Law
EDITED BY
Brian Opeskin
Richard Perruchoud
Jillyanne Redpath-Cross
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town,
Singapore, São Paulo, Delhi, Mexico City
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
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Printed and bound in the United Kingdom by the MPG Books Group
A catalogue record for this publication is available from the British Library
Migration has been an integral part of human activity for as long as people have
inhabited the earth. Whether moving as individuals, families or tribes, migration is
an age-old response to the physical need for food, shelter and security, and the
psychological need for adventure and exploration. However, while migration has
marked all periods of human history, the phenomenon of ‘international migration’
had to await the reordering of the geopolitical landscape as a collection of terri-
torial States in which governments had authority over settled populations residing
within defined geographic boundaries.1
The Treaty of Westphalia (1648) was a critical turning point in establishing that
new landscape, but for the next two centuries individuals still enjoyed substantial
freedom in traversing the boundaries of the State. This reflected an attitude of
hospitality to strangers that was inherited from ancient cultures and expressed
through cosmopolitanism. This attitude can be seen in the scholarly works of the
great writers of international law of the eighteenth and nineteenth centuries, who,
with few exceptions, took a liberal attitude to the movement of people across
borders for trade, commerce and other purposes.2 If law in this early period paid
scant attention to regulating migration, it was partly for the practical reason that
the number of people involved was modest because modes of transport were
confined to land crossings by foot or horse, and sea crossings by wind-powered
sailing vessels. There were some notable exceptions to this laissez-faire approach,
but the circumstances in which law was invoked to regulate international migra-
tion were few.
1 Friedrich Kratochwil, ‘Of Systems, Boundaries, and Territoriality: An Inquiry into the Formation of the State System’
(1986) 39(1) World Politics 27.
2 James Nafziger, ‘The General Admission of Aliens under International Law’ (1983) 77 American Journal of
International Law 804.
1
2 Conceptualising international migration law
Change came with the Industrial Revolution, which generated great interest in
the New World and provided new means for getting there. There was substantial
migration to the New World from Europe and Asia,3 but it was the latter, partic-
ularly, that drew the attention of national laws. Fuelled by racist concerns about
hordes of Asian immigrants, many States began to erect legal barriers to entry
through legislative enactments, supported by sympathetic national courts.
Famously, in 1891, the Supreme Court of the United States upheld the right of
the legislature to exclude foreigners if they were considered dangerous to the peace
of the country. Selectively invoking one of the great writers of international law,
Emmerich de Vattel, the Court proclaimed:
It is an accepted maxim of international law, that every sovereign nation has the power, as
inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners
within its dominions, or to admit them only in such cases and upon such conditions as it may
see fit to prescribe.4
3 Wilbur Zelinsky, ‘The Hypothesis of the Mobility Transition’ (1971) 61(2) Geographical Review 219.
4 Nishimura Ekiu v. United States 142 US 651 (1891), 659.
5 Louis Varlez, ‘Les migrations internationales et leur réglementation’ (1927) 20(V) Recueil des cours 165.
6 Ibid. 333–4. 7 Ibid. 343 (Editors’ translation).
8 Convention on Certain Questions relating to the Conflict of Nationality Law, opened for signature 13 April 1930, 179
LNTS 89 (entered into force 1 July 1937); Protocol relating to Military Obligations in Certain Cases of Double
Nationality, opened for signature 12 April 1935, 178 UNTS 227 (entered into force 25 May 1937).
3 The evolution of international migration law
affected, for instance, their duty to admit members of their own community upon
entry or return.
Another topic of concern was the plight of millions of European refugees who
had been dislocated by the First World War or had fled the Russian Revolution of
1917.9 Many had no nationality, or no means of proving nationality, and thus no
capacity to access basic rights in the States in which they found themselves. The
League of Nations sought to address the problem by establishing High
Commissioners to provide substitute documentation (Nansen passports) and over-
see their resettlement. Conventions concluded under the auspices of the League of
Nations, such as those of 1933 and 1938,10 became the forerunners of the legal
regime for refugee protection necessitated by the Second World War.
A third topic of international interest in this period was the elimination of
exploitation through forced labour, human trafficking and slave trading. These
concerns were not confined to cross-border movement, but the international
dimensions of these practices made them ripe for global action. The first steps to
abolish slave trading had in fact come through national law much earlier, com-
mencing with the United Kingdom in 1807,11 and continuing through national
abolitionist movements throughout the nineteenth century.12 On the international
plane, in 1924 the League of Nations established the Temporary Slavery
Commission to review slavery in all its forms, which led to the Slavery
Convention (1926).13 Within a few years, the International Labour Organization
(‘ILO’) had concluded a convention to tackle exploitation of forced labour, which
has now been ratified by nearly all States.14
The depravities of the Second World War, with its orchestration of human misery
on an unparalleled scale, ushered in a new order of laws and institutions, which had
a dramatic impact on the evolution of international migration law. The Universal
Declaration of Human Rights (1948) (‘Universal Declaration’), while not a binding
legal instrument, proclaimed itself as a ‘common standard of achievement for all
peoples and all nations’ and became the kernel around which customary interna-
tional law would later crystallise.15 Several provisions of the Universal Declaration
addressed the phenomenon of international migration, which was burgeoning in
the post-war period – the entitlement to rights and freedoms without distinction
based on national or social origin or other status (art. 1); the prohibition of the slave
9 James Hathaway, ‘The Evolution of Refugee Status in International Law: 1920–1950’ (1984) 33(2) International and
Comparative Law Quarterly 348.
10 Convention relating to the International Status of Refugees, opened for signature 28 October 1933, 159 LNTS 3663
(entered into force 13 June 1935); Convention concerning the Status of Refugees coming from Germany, opened for
signature 10 February 1938, 192 LNTS 4461 (entered into force 25 October 1938).
11 Abolition of the Slave Trade Act 1807 (UK) (47 Geo III Sess. 1 c. 36), abolishing slave trading, followed by the
Slavery Abolition Act 1833 (UK) (3 & 4 Will. IV c. 73), abolishing slavery.
12 Mike Kaye, ‘1807–2007: Over 200 Years of Campaigning against Slavery’ (Anti-Slavery International, 2005).
13 Slavery Convention, opened for signature 25 September 1926, 60 LNTS 254 (entered into force 9 March 1927).
14 Convention concerning Forced or Compulsory Labour (ILO Convention No 29), opened for signature 10 June 1930,
39 UNTS 55 (entered into force 1 May 1932). In mid 2012 there were 175 States parties.
15 Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (10 December 1948).
4 Conceptualising international migration law
trade (art. 4); equality before the law without discrimination (art. 7); the right to
leave any country and to return to one’s own country (art. 13); the right to seek
asylum from persecution in other countries (art. 14); the right to a nationality and
not to be arbitrarily deprived of one’s nationality (art. 15); the right to protection of
the family (art. 16); and more generally the right of everyone (including migrants)
to social security, work, a reasonable standard of living and education (arts. 22–26).
The primary goal of the Universal Declaration was educative – to ‘strive by
teaching and education to promote respect for these rights and freedoms’16 – yet
the massive social dislocations of the Second World War generated problems that
required immediate legal solutions. In the post-war years, under the auspices of the
United Nations, the international community concluded a raft of treaties address-
ing migration-related problems, including the plight of refugees (at first in Europe,
but later more generally),17 the situation of persons who had no nationality and
were therefore stateless,18 and measures to reduce statelessness.19
A range of international human rights instruments also emerged, addressing
rights and freedoms to be enjoyed by ‘everyone’, including migrants. These
included two international covenants that gave legal effect to the hortatory state-
ments of the Universal Declaration.20 Specific human rights treaties followed,
directing attention to the problems encountered by particular classes of vulnerable
persons (e.g., women, children, migrants) or arising from particular repugnant
practices (e.g., racial discrimination, torture). Many of these specialised instru-
ments reformulated norms that had evolved elsewhere – for example, the
Convention on the Rights of the Child (1989) proclaims the right of every child to
registration at birth, a name and a nationality (art. 7),21 restating principles
articulated in the Universal Declaration. Significantly, the United Nations
General Assembly adopted the International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families (1990), which sets out
a comprehensive framework for protecting migrant workers across all migratory
stages – from pre-departure, to transit, settlement and return.22 However, this
convention has not been widely ratified, especially by migrant-receiving States.
16 See also Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights
(Random House, 2001).
17 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force
22 April 1954); Protocol relating to the Status of Refugees, opened for accession 31 January 1967, 606 UNTS 267
(entered into force 4 October 1967).
18 Convention relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117
(entered into force 6 June 1960).
19 Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into
force 13 December 1975).
20 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171
(entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for
signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
21 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2
September 1990).
22 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families,
opened for signature 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003).
5 The evolution of international migration institutions
Currently, ‘international migration law’ is an umbrella term for the complex web of legal
relationships among persons, groups and States that together regulate the movements of
individuals. It is a branch of law that has developed over time and, indeed, continues to develop
with the ever-increasing need for international cooperation and regulation involving States,
migrants and international civil society in general.25
The main pillars of international migration law are, first, the human rights and
duties of persons involved in migration, as defined in a variety of international
instruments; and second, the principles and standards deriving from State sover-
eignty, among which are the right to protect borders, confer nationality, safeguard
national security, admit and expel non-nationals and combat smuggling and
trafficking. To this, a third pillar may now be added, namely, the law promoting
cooperation among States to manage the international movement of people.
23 Richard Plender, International Migration Law (Martinus Nijhoff, 2nd edn, 1988) xiv.
24 Richard Perruchoud and Katarína Tömölová (eds.), Compendium of International Migration Law Instruments (TMC
Asser Press, 2007).
25 Ibid. v.
7 A search for order
The evolution of international migration law in the past few decades has been
extraordinary. Looking at the first pillar (human rights), historically migrants
looked to their State of nationality for diplomatic or consular protection; now,
while this type of protection remains important, human rights treaties have insti-
tuted protection mechanisms open to all, including migrants, at the universal and
regional levels. The consequences of this development are not yet fully used by
migrants and their representatives. Some aspects of the second pillar (State sover-
eignty) have been developed as well, particularly in the field of detention and
exclusion, and the need to balance protection of human rights with security. The
third pillar has witnessed important changes requiring States to cooperate more
closely in almost every aspect of migration.
26 Richard Lillich, The Human Rights of Aliens in Contemporary International Law (Manchester University Press,
1984) 122.
27 Alexander Aleinikoff, ‘International Legal Norms on Migration: Substance without Architecture’ in
Ryszard Cholewinski, Richard Perruchoud and Euan Macdonald (eds.), International Migration Law (TMC Asser
Press, 2007) 467, 479.
28 Alexander Aleinikoff, ‘International Legal Norms and Migration: A Report’ in Alexander Aleinikoff and
Vincent Chetail (eds.), Migration and International Legal Norms (TMC Asser Press, 2003) 1, 2.
8 Conceptualising international migration law
norms rooted in, and borrowed from, branches of law as diverse as human rights,
criminal law, humanitarian law, and so on.
New types of law, or legal regimes, do emerge in response to new needs.
Sometimes this occurs quite rapidly, as happened with the emergence of space
law once space flight became a technological reality with the launch of the world’s
first artificial satellite in 1957.29 More commonly, legal regimes emerge from the
gradual accretion of law and practice over substantial periods of time. Since the
Second World War – the most formative period of international migration law –
international law has witnessed the rise of international economic law, interna-
tional environmental law, international criminal law, the law of the sea, and many
other areas that are now considered to be discrete and specialised domains. To ask
at what point a set of legal norms becomes a special legal regime is much like
asking an oyster when a grain of sand becomes a pearl: not only is there no
defining moment, but the descriptive failure does nothing to diminish what has
been created.
The questions may be asked: can international migration law be properly
regarded as a self-contained legal regime or a special legal regime? The first
question is easier to answer and draws a clear negative response. In a strict sense,
the notion of a self-contained regime defines a system with special rules, quite
distinct from general rules of international law, which includes mechanisms for
countering breaches. Examples are the dispute settlement system under the World
Trade Organization or the operation of diplomatic law, with its reciprocal privileges
and immunities.30 International migration law manifestly does not correspond to
this notion. A broader notion of a self-contained regime was considered by the
Permanent Court of International Justice in the Case of the S. S. Wimbledon, where
the Court held that the regime regulating the passage of vessels through the Kiel
Canal was fully governed by specific treaty provisions, without the need to resort to
other sources of law or general public international law, which may have different
rules.31 International migration law would hardly fit into this enlarged concept
either. In sum, international migration law does not have the characteristics of a
self-contained regime within the meaning identified by international courts in
these cases.
The question whether international migration law constitutes a special legal
regime is more contested. An initial difficulty is that opinions vary as to the
meaning of ‘regime’ in this context, and how it differs from the notion of a ‘branch’
or ‘field’ of international law.32 Some consider the terms interchangeable; others
29 In 1959 the United Nations established the Committee on the Peaceful Uses of Outer Space (COPUOS), which
negotiated five international treaties that now form the core of space law.
30 United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran) (Judgment) [1980] ICJ
Rep 3, [86].
31 Case of the SS Wimbledon (United Kingdom v. Germany) (Judgment) [1923] PCIJ (ser A) No 1, 3, 23–4.
32 Vincent Chetail, ‘Migration, droits de l’homme et souveraineté: le droit international dans tous ses états’ in
Vincent Chetail (ed.), Mondialisation, migration et droits de l’homme: le droit international en question, Volume II
(Bruylant, 2007) 13, 21.
9 A search for order
opt for a restrictive definition that would confine a regime to a well-defined set of
rules governing a field of activity, with its own enforcement mechanisms, generally
based on a treaty. In this regard, there is merit in Koskenniemi’s view that the
solution should be functional rather than doctrinaire:
the widest of special regimes – denominations such as ‘international criminal law’, ‘human-
itarian law’, ‘trade law’, ‘environmental law’ and so on – emerge from the informal activity of
lawyers, diplomats, pressure groups, more through shifts in legal culture and in response to
practical needs of specialization than a conscious act of regime-creation. Such notions mirror
the functional diversification of the international society or, more prosaically, the activities of
particular caucuses seeking to articulate or strengthen preferences and orientations that seem
not to have received sufficient attention under the general law.33
33 Martii Koskenniemi, Fragmentation of International Law: Difficulties Arising from the Diversification and
Expansion of International Law, International Law Commission, 58th sess, UN Doc A/CN.4/L.682 (13 April
2006), 84–5.
10 Conceptualising international migration law
migration law. The first calls for a new supranational organisation – a World
Migration Organization – to make effective, generous and humane global migra-
tion policy, free from the narrow political interests that typically motivate individ-
ual States.34 Needless to say, supranational governance in the field of migration is,
and will remain, resisted by States – even ‘soft’ governance limited to well-defined
topics is difficult to put in motion at the global level. As a result, many now
consider discussions on the architecture of supranational migration governance
to be unproductive.
A second solution calls for an overarching instrument on international migra-
tion that would consolidate, in a single place, the substantial volume of extant
principles that are currently dispersed across different instruments and different
branches of international law. Such a treaty would set out a comprehensive frame-
work of rights and duties of States and individuals, and provide supervisory
mechanisms for monitoring and enforcement. It is probably unrealistic to expect
such a treaty to encompass all three pillars of international migration law – human
rights, state sovereignty and international cooperation – since the last, especially, is
too diverse. There is merit, however, in codifying the human rights principles under
the first pillar, notwithstanding the criticism that efforts would be better spent
improving the implementation of existing norms.35 Indeed, scholars have already
begun the task of drafting an ‘International Migrants Bill of Rights’ as a ‘dynamic
blueprint for the protection of the rights of migrants, drawing from all areas of
international law, including treaty law, customary international law, areas of State
practice and best practices’.36
The variety of topics that fall within the rubric of international migration law
presents an organisational challenge for a book that seeks to cover the foundations
of the field. Scholarly books typically demand a linear treatment of their subject
matter whereas, in reality, international migration law is a web of interrelated
norms. It follows that many alternative orderings of the material may be justified,
and we experimented with several of them before settling on the present structure.
This book seeks to lay down the foundations of the subject through central
concepts and principles, before examining higher-order problems. Readers who do
not wish to read the chapters sequentially should make liberal use of the tools
provided to find a quick entry point to the material that interests them – the detailed
table of contents, the index, the glossary, the appendices of cases and international
34 See Arthur Helton, ‘Unpleasant Surprises Await’ (2002) 58(6) Bulletin of the Atomic Scientists 94.
35 Aleinikoff, above n. 27, 478.
36 Georgetown University Law Center, ‘International Migrants Bill of Rights’ (2010) 24 Georgetown Immigration Law
Journal 395.
11 Structure of this book
return refugees to a territory where their life or freedom would be threatened, and
must not discriminate on certain grounds (e.g., race) in the admission of non-
nationals. In relation to exit, States must allow any person to leave the country
(subject to limited exceptions), but they can expel non-nationals so long as inter-
national procedural safeguards are met. Today, the authority of States to regulate
entry and exit is not disputed: the exceptions to the discretionary power of States are
well defined, if not always respected in practice.
Chapter 6 turns to the human rights of migrants, which is a leitmotif that
resurfaces throughout the book. International law gave protection to foreigners
long before the dawn of the United Nations era (such as a State’s right to exercise
‘diplomatic protection’ in respect of a national injured abroad by a foreign State),
but it is since the founding of the United Nations that there has been the most
remarkable growth. The norms of equality and non-discrimination are directly
relevant to migrants, but all international human rights norms are significant
because they apply to every human being, and therefore include migrants. The
chapter surveys the major rights and freedoms in their application to migrants,
including the specialised instruments that apply to migrant workers. It is clear that
there is no shortage of beneficent legal principles, but many migrants continue to
suffer discrimination, exploitation and persecution, revealing a significant gap
between rights and reality.
Chapter 7 addresses one type of forced migration – the situation of refugees and
asylum seekers. Born out of the massive dislocations in Europe from two world
wars, the Convention relating to the Status of Refugees (1951) (‘Refugee
Convention’)37 establishes a legal framework for providing international protec-
tion to persons who cannot seek the protection of the State of their nationality
because they have a ‘well-founded fear of being persecuted for reasons of race,
religion, nationality, political opinion, or membership of a particular social group’.
The chapter considers the criteria for refugee status and the rights afforded to those
who qualify. The most fundamental right arises from the duty of States not to
return a refugee to the frontier of a territory where his or her life or freedom would
be threatened – the duty of non-refoulement. Despite the strength of the legal
structure, the refugee system is a system under strain. The number of refugees is
large – nearly 10 million globally in 2010. One-quarter of all States have not
ratified the Refugee Convention; implementation is atomised under a State-based
system of compliance; and the burden of offering protection to refugees falls very
disproportionately on the developing world.
Chapter 8 examines the legal protections afforded to women, children and other
marginalised migrant groups, such as those with disabilities. Numerically, these
groups are well represented today in migrant stocks and flows, but historically
37 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force
22 April 1954).
13 Structure of this book
they have been largely invisible because the paradigmatic migrant was considered
to be an able-bodied, adult male who leaves home to seek his fortune or save his
life. Addressing these marginalised groups within a single chapter should not be
taken to imply, however, that they are similarly and invariably vulnerable or
disempowered. Individuals within each of these groups enjoy rights and freedoms
under general human rights norms, but specialised instruments expand upon those
rights in particular contexts. Thus, there are separate treaties addressing the rights
of children, discrimination against women, and the rights of persons with disabil-
ities, as well as overlapping instruments addressing migrant workers and other
matters. The critical problem facing these groups of migrants is not a normative
vacuum, but a failure of political will to implement existing laws.
Chapter 9 examines the legal regimes that address human trafficking and
smuggling. Although legal regulation of these practices has older roots, current
efforts centre around two protocols that were concluded in 2000 as part of an
international effort to combat transnational organised crime.38 Trafficking and
smuggling sometimes possess common features, but they are conceptually distinct.
Trafficking is a criminal activity that typically involves the recruitment of persons
by deceptive or other means for the purpose of their exploitation – whether for
sexual purposes, sweatshops, agricultural or domestic labour, forced marriage or
organ harvesting. The victim’s participation is non-consensual. Smuggling is a
criminal activity that involves procuring the irregular entry of a person into a State
of which he or she is not a national for material benefit. This may be a consensual
commercial transaction, but in practice the social and economic disadvantage that
encourages people to participate in smuggling is similar to that which makes them
vulnerable to trafficking. The clandestine nature of both practices makes it difficult
to quantify the effectiveness of the protocols, but they provide a helpful legal
framework in the fight against these practices.
Chapter 10 considers a topic that has been largely sidelined in the migration
literature, namely, how the legal regimes that regulate air and sea transport intersect
with the web of norms that comprise international migration law. Difficulties arise
because the regulatory regimes governing civil aviation and maritime transportation
focus on delimiting rights and obligations in respect of commercial activities that
have frequent contact with multiple States. In this environment, the human rights of
the migrants who make those journeys are sometimes obscured. The chapter exam-
ines the mechanisms employed by States to intercept migrants before they reach the
State’s frontier; the co-opting of commercial carriers in screening out irregular
migrants through penalty regimes known as carrier sanctions; interdiction at sea;
38 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing
the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000,
2237 UNTS 319 (entered into force 25 December 2003); Protocol against the Smuggling of Migrants by Land, Sea
and Air, Supplementing the United Nations Convention against Transnational Organized Crime, opened for
signature 15 November 2000, 2241 UNTS 507 (entered into force 28 January 2004).
14 Conceptualising international migration law
stowaways; smuggling by sea; and the rescue of persons in distress at sea. Although
the relevant legal instruments are occasionally punctuated by humanitarian con-
cerns, they also underpin the State’s sovereign authority to control its borders by
deterring irregular migration by sea or air.
Chapter 11, and the following chapter, examine the theme of labour migration
from different perspectives. A very large part of international migration is bound up
with the world of work, and the area has spawned a large number of specialised legal
instruments. Since 1919, the ILO has played a key role in drawing up international
minimum labour standards aimed at safeguarding the rights of migrant workers,
including conventions, recommendations, principles and guidelines. The United
Nations has also responded with a core human rights document, the International
Convention on the Protection of the Rights of All Migrant Workers and Members of
their Families (1990).39 Despite shortcomings in ratification and implementation of
these instruments, an international rule of law framework exists for protecting the
rights of migrant workers. This is much needed, given the increasing integration of
the global economy and the rise of precarious forms of employment.
Chapter 12 continues the theme of labour migration in the specific context of
temporary labour mobility under the regime of international trade law. Although
it is infrequently discussed within the mainstream of international migration law,
the topic is significant because it is the only multilateral legal framework that
seeks to liberalise the international movement of persons. The mechanism for
doing so is the General Agreement on Trade in Services (1994) (‘GATS’), which
promotes different modes of trade in services between member States of the
World Trade Organization. One such mode (Mode 4) is where labour crosses an
international border to provide a service in another State. The potential of GATS
Mode 4 to facilitate labour mobility is significant, but is far from fully realised.
International migration is enabled by GATS only to the extent that member States
make mutual commitments to allow entry of particular classes of persons in
specific sectors of the economy. To date, these commitments have been limited
and favour high-skilled employment, to the disadvantage of developing States.
The prospects of further trade liberalisation under the current round of multi-
lateral negotiations appear to be bleak, but regional trade frameworks provide a
more optimistic outlook.
Chapter 13 marks an important shift from the substantive content of interna-
tional migration law to the global institutions and processes that facilitate the
progressive development of migration norms. A complex array of international
institutions and processes has emerged in recent decades in response to increasing
globalisation, greater awareness of the need for coordinated international efforts
to manage migration, and heightened attention by governments. Of the
that the category of stranded migrants has sufficient empirical coherence and
validity to justify the development of a new framework of law and policy.
This précis of the subject matter of this book indicates that the foundations of
international migration law have evolved rapidly and drawn inspiration from
diverse areas of international law. As one of the present authors has stated,
‘international migration law is perhaps the branch of law most resembling public
international law – a dynamic law, in constant evolution, with occasionally blurred
boundaries; a law as yet unfinished but necessary for understanding and managing
one of the most pressing problems of our times.’40
40 Richard Perruchoud, ‘Droit international et migration’ (2005) 24(4) Refugee Survey Quarterly 81, 87 (Editors’
translation).