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Mapping Global Migration Law, or the Two Batavias

  • Chantal Thomas (a1)
Extract

This symposium has marshaled numerous insights regarding the emergence of a general field of inquiry within international law on the movement of people. To move into this conceptual terrain has required a certain amount of defiance of the conventional wisdom that questions of migration are within the purview of the sovereign state, and a matter of sovereign territorial prerogative. Yet this conventional wisdom manifestly no longer describes the times. There are now a host of limitations under positive international law on the prerogative of states to control rights of noncitizens to entry, residence, and work within their territories; and limitations on states’ rights to exclude or expel noncitizens therefrom.

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References
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1 For an argument that both of these norms can be understood to stem from the commitments of liberal legality within international law, see Chantal Thomas, Convergences and Divergences in International Legal Norms on Migrant Labor, 32 Comp. Lab. L. & Pol'y J. 101, 122 (2011).

2 Peter Spiro also discusses fragmentation in his contribution to this symposium, Peter J. Spiro, The Possibilities of Global Migration Law, 111 AJIL Unbound 3 (2017).

3 Int'l Law Comm'n, Report, Fifty-Fourth Session para. 498, UN Doc. A/57/10 (2002).

4 Id. at paras. 497-98.

5 Thomas, supra note 1, at 118-19.

6 Jurisdictions have varied on whether status as a victim of trafficking can afford a basis for refugee law protection. See Chantal Thomas, Irregular Migration and International Law in a Globalizing Age ch. 2 (forthcoming, 2018).

7 Chantal Thomas, Transnational Migration, Globalization and Governance: Theorizing a Crisis, in Handbook on International Legal Theory (Martin Clark et al. eds., 2016) (discussing the large increase in Central American refugees into the United States in 2014 ); Chantal Thomas, Effects of Globalization in Mexico, 1980-2000: Labour Migration as an Unintended Consequence, in Social Regionalism in the Global Economy (Adelle Blackett & Christian Lévesque eds., 2011).

8 Many regional instruments have established freedom of movement of persons to varying degrees, including the European Union, the Economic Community of West African States, the Common Market for Eastern and Southern Africa, and Mercosur. For a discussion of implementation in Mercosur, see Diego Acosta, Global Migration Law and Regional Free Movement: Compliance and Adjudication—The Case of South America, 111 AJIL Unbound 159 (2017).

9 Central America Free Trade Agreement art. 11.1(5), May 28, 2004, 43 I.L.M. 514 (2004) & Understanding on Immigration Measures, Aug. 5, 2004; North American Free Trade Agreement art. 1201(3), Dec. 17, 1992, 32 I.L.M. 289, 605 (1993).

10 General Agreement on Trade in Services, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex on Movement of Natural Persons Supplying Services Under the Agreement para. 4, 1869 UNTS 183, 33 ILM 1167, 1187 (1994) [hereinafter MONP Annex].

11 Antonia Carzaniga, GATS, Mode 4 and Pattern of Commitments, in Moving People to Deliver Services 21 (World Bank Publications, 2003).

12 See MONP Annex, supra note 10, at n.1

16 Chris Szabla, The History of the Refugee Convention's Definition (manuscript on file with author, 2015); Gilbert Jaeger, On the History of the International Protection of Refugees, 83 ICRC Rev. 727 (2001).

17 Convention Concerning the Status of Refugees Coming from Germany art. 1, Feb. 10, 1938, CXCII LNTS No. 4461.

18 Frédéric Megret and Vincent Chetail have discussed this in their contributions to this symposium. See Frédéric Mégret, Transnational Mobility, the International Law of Aliens, and the Origins of Global Migration Law, 111 AJIL Unbound 13 (2017); Vincent Chetail, The Architecture of International Migration Law: A Deconstructivist Design of Complexity and Contradiction, 111 AJIL Unbound 18 (2017). A foundational study was authored by James Nafziger, The General Admission of Aliens Under International Law, 77 AJIL 811 (1983). Additional discussion can be found in Vincent Chetail, Sovereignty and Migration in the Doctrine of the Law of Nations: An Intellectual History of Hospitality from Vitoria to Vattel, 27 Eur. J. Int'l L. 901 (2016); Chantal Thomas, What Does the Emerging International Law of Migration Mean for Sovereignty?, 14 Melbourne J. Int'l L. 438 (2013).

19 Thomas, supra note 6, at ch. 1. I fondly recall traversing Batavia, N.Y., with Antony Anghie and Boris Mamyluk on our way to a Toronto Group conference—that wintry adventure helped to form the thoughts expressed here.

21 See E. Tendayi Achiume, Reimagining International Law for Global Migration: Migration as Decolonization?, 111 AJIL Unbound 142 (2017). For crucial perspectives on the colonial encounter and international law, see Antony Anghie, Imperialism, Sovereignty and the Making of International Law (2007); Bandung, Global History and International Law (Luis Eslava et al. eds., 2017).

22 Secretary-General, Making Migration Work for All, UN Doc. A/72/643 (Dec. 12 2017).

23 Some of the earlier contributors to this symposium have identified a few. Jaya Ramji-Nogales, Moving Beyond the Refugee Law Paradigm, 111 AJIL Unbound 8, 9 n. 8 (2017) (in particular noting the problematic binary between the Global Compact on Migration and the parallel initiative towards a Global Compact on Refugees); T. Alexander Aleinikoff, Toward a Global System of Human Mobility: Three Thoughts, 111 AJIL Unbound 24 (2017).

24 Patrick Wintour, Donald Trump Pulls US out of UN Global Compact on Migration, The Guardian, (Dec. 3, 2017).

25 Mohammed Bedjaoui, Towards a New International Order (1979). For a discussion of the legacies of this movement, see Luis Eslava & Sundhya Pahuja, Between Resistance and Reform: TWAIL and the Universality of International Law, 3 Trade, L. & Dev.103 (2011).

This essay is adapted from a forthcoming monograph, Irregular Migration and International Law in a Globalizing Age (forthcoming, 2018).

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AJIL Unbound
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  • EISSN: 2398-7723
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