Protecting and Benchmarking Migrants’ Rights: An Analysis of the Global Compact for Safe,Orderly and Regular Migration

The Global Compact for Safe, Orderly, and Regular Migration (GCM) was to be “guided by human rights law and standards” in recognition of the rights of international migrants, who are currently protected by an overlapping patchwork of treaties and international law. The GCM contains many laudable commitments that, if implemented, will ensure that states more consistently respect, protect, and fulfil the rights of all migrants and also that states incorporate data on migration into a more cohesive governance regime that does more to promote cooperation on the issue of international migration. However, many concerns remain. Using a legal analysis and cross‐national policy data, we find that the GCM neither fully articulates existing law nor makes use of international consensus to expand the rights of migrants. In its first section, this article provides a concise analysis of the GCM's compliance with a set of core principles of existing international human rights law regarding migrants. In the second section, we apply a novel instrument to create an objective, cross‐national accounting of the laws protecting migrants’ rights in various national legal frameworks. Focusing on a sample of five diverse destination and sending countries, the results suggest we are close to an international consensus on the protection of a core set of migrants’ rights. This analysis should help prioritize the work necessary to implement the GCM.     

International law and human rights: trends concerning international migrants and refugees

Not with standing human rights linkages, migrants and refugees are often on the periphery of effective international protection. State sovereignty and self-regarding notions of community are used to deny or dilute substantive and procedural guarantees. Recently, even non- discrimination as a fundamental principle has been questioned, as has the system of refugee protection. This article located both migrants and refugees squarely within the human rights context, contrasting both inalienable rights with the demands of sovereignty, and juxtaposing the 2 in a context of existing and developing international standards. Migration and refugee flows will go on, and the developed world, in particular, must address the consequences - legal, humanitarian, socioeconomic, and cultural. Racism and institutional denials of basic rights daily challenge the common interest. This article shows how the law must evolve, responding coherently to contemporary problems, if the structure of rights and freedoms is to be maintained.     

Public Social Services’ encounters with irregular migrants in Sweden: amid values of social work and control of migration

This article outlines Public Social Services’ encounters with irregular migrants in Sweden from the perspectives of institutional and street-level bureaucrats. Staff and executive considerations are influenced by a de jure exclusion of irregular migrants, which is an element of the control of migration. Staff face contradictory demands concerning international and national regulations, which leads to legal ambiguities open to discretionary powers. The aim is to explore the handling of such cases, experiences and considerations with an interest in the values that are invoked when enacting discretion and to discuss implications of the unclear legal situation. The material was obtained using web-based questionnaires. A tentative analysis confirms that the Public Social Services encounter irregular migrants and that handling differs greatly. It suggests that different approaches and the contradictory legal framework endanger the rule of law. Differing reference points appear to be invoked when enacting discretion: some related to social work and others to controlled migration. The social work values invoked by some respondents might imply an appreciation of a right to services and control of migration as independent processes and jurisdiction related to human rights that are applicable beyond the nationally framed legal status and not subordinated to policies of migration.     

The Global Compact for Migration: what could it mean for women and gender relations?

ABSTRACT

Under half of international migrants throughout the world are women. While large movements of people, human rights and humanitarian crises, and migrant deaths are not new, the public attention given to the arrivals of refugees and migrants to the shores of Europe has compelled governments to engage in a multilateral manner. In September 2016, the United Nations General Assembly held its first-ever summit dedicated to large movements of refugees and migrants, reaffirming the importance of existing legal instruments to protect refugees and migrants, and also foreseeing the development of two new Global Compacts: one on refugees, and the other for safe, orderly and regular migration. This article examines the process to elaborate the Global Compact for Safe, Orderly and Regular Migration from a gender-responsive perspective. It takes into consideration the advocacy role that the Women in Migration Network and other civil society stakeholders have played in its development, identifies the various opportunities and gaps within the Global Compact, and explores how women’s organisations and development organisations can promote change for women in migration under the new Global Compact.     

The concept of international migration as reflected in data collection systems

The problems of statistics relating to international migration have been well documented. It is a fact that the concepts of legal nationality, residence, place of birth, time, and purpose of stay underlying those statistics vary considerably, not only between countries but even within countries through time or between different sources of information within the same country. The crusade to achieve greater homogeneity in the concepts underlying flow statistics on international migration was started at least 55 years ago, but despite some encouraging developments, it is unlikely that homogeneity will be achieved during the rest of this century. This article analyzes how these 5 basic concepts are used to characterize migration. Statistical systems generally use at least 1 or more of these concepts to identify migrants from other international travelers. A review of these basic concepts reveals the great influence that legal or regulatory considerations exert, whether explicitly or implicitly, in their definitions. Perhaps one of the most serious problems in understanding how migration is viewed and measured by national statistical systems is to disentangle the legal or quasilegal nature of certain concepts from those that can be taken at face value. The tendency to sift from their meaning all legal impurities and thus transform them into reflections of actual events operates under the assumption that migrants are free agents, able to determine their durations of stay, absence, or the type of work that they will perform. In reality, the freedom of migrants stops where the State's prerogatives start, and statistics often reflect an uneasy compromise between the 2. Despite their many deficiencies, statistics on international migration are a rich source of information, not only about quantitative aspects of the process, but also about how the process is conceived by their generators. A careful evaluation of their meaning, scope, and limitations can be, therefore, a rewarding exercise.     

AIDS,travel and migration: legal and human rights aspects

This article discusses the legal and human rights aspects of AIDS, travel, and migration in Africa. Restrictions upon migration and travel in the context of HIV/AIDS have directed attention on the jeopardy of free international movement and the need to uphold it. International travel and migration have been blamed for introducing HIV and restrictions imposed to prevent the import of such disease. Contemporary legal and administrative barriers to free movement of people across national borders are similar to the physical barriers imposed to prevent the spread of diseases in past centuries. However, physical barriers failed to prevent the international spread of diseases and legal and administrative barriers have been proven ineffective. Meanwhile, responses to HIV/AIDS set patterns for other health-related issues and to affect the entire legal framework of international travel and migration. Based on previous studies, data on migratory flows and numbers of travelers and migrants are scarce in Africa. Migrants represent more or less 10% of the population of sub-Saharan Africa or 35 million persons, including some 60 million refugees.     

Irregular migration: policy responses in Africa and Asia

This article reviews population policies designed to curb or respond to irregular migration flows, with particular emphasis on policies adopted by governments in Africa and Asia. An overview of policies on the world level indicates a number of similarities that transcend regional lines and levels of development. Policy decisions are often influenced by the nature and attributes of the undocumented migrant population and by the current social, economic, and political situation in the receiving country. Governments are frequently more tolerant of migrants who possess needed skills or settle in sparsely populated areas that have manpower shortages. Between the 2 policy extremes of amnesty and deportation, several measures have been employed, including stricter border controls, stringent visa requirements, work permit systems, and efforts to ensure that migrants do not violate the conditions of their admission. In many cases, several policy measures are used simultaneously. Ensuring the observance of appropriate measures for the recruitment of migrant workers, their departure from the home country, and placement in employment in the country of immigration is widely regarded as the best way to prevent illegal movements of workers. Temporary worker programs are sometimes advocated to provide legal channels for potential migrants. At the national level, institutions that deal with irregular migrants tend to be limited in their mandate to a law enforcement role. In Africa, most governments have recently strengthened border and documentary controls and attempted to regulate migration through the labor market. In many cases, mass expulsions have been necessary as a result of laissez-faire policies. In Asia, on the other hand, mass deportation has been less common as a result of more stringent security measures and documentary controls. In both countries, policies have been basically reactive in response to rapidly changing political and economic conditions. Needed is an international convention to serve as a guideline for the humanitarian treatment of undocumented workers.     

Principles of Protection for Internally Displaced Persons

For forced migrants who have not left their country but are internally displaced persons, human rights law provides an important framework through which to analyse and address their plight. Two principal reasons underpin this assertion.
First, owing to the compelling need: human rights violations cut across all phases of internal displacement, causing its occurrence, characterizing the conditions of physical insecurity and material deprivation in which the internally displaced often find themselves, and impeding equitable and lasting solutions.
Second, as internally displaced persons remain within the territory of their state, refugee law does not apply and, instead, human rights law provides the fundamental basis for addressing their plight. In addition to human rights law, other standards of international law are also relevant, namely international humanitarian law when displacement occurs in situations of armed conflict and refugee law by analogy.
Drawing on these three standards of international law, Guiding Principles on Internal Displacement have been developed which set out what protection should mean for internally displaced persons in all phases of displacement. This article traces the origins and provides an overview of the content of the Guiding Principles, the text of which is reproduced in full in the Appendix.     

Human Rights of Migrants: Challenges of the New Decade

This review summarizes main trends, issues, debates, actors and initiatives regarding recognition and extension of protection of the human rights of migrants. Its premise is that the rule of law and universal notions of human rights are essential foundations for democratic society and social peace. Evidence demonstrates that violations of migrants' human rights are so widespread and commonplace that they are a defining feature of international migration today. About 150 million persons live outside their countries; in many States, legal application of human rights norms to non‐citizens is inadequate or seriously deficient, especially regarding irregular migrants. Extensive hostility against, abuse of and violence towards migrants and other non‐nationals has become much more visible worldwide in recent years. Research, documentation and analysis of the character and extent of problems and of effective remedies remain minimal. Resistance to recognition of migrants' rights is bound up in exploitation of migrants in marginal, low status, inadequately regulated or illegal sectors of economic activity. Unauthorized migrants are often treated as a reserve of flexible labour, outside the protection of labour safety, health, minimum wage and other standards, and easily deportable. Evidence on globalization points to worsening migration pressures in many parts of the world. Processes integral to globalization have intensified disruptive effects of modernization and capitalist development, contributing to economic insecurity and displacement for many. Extension of principles in the Universal Declaration of Human Rights culminated in the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. With little attention, progress in ratifications was very slow until two years ago. A global campaign revived attention; entry into force is likely in 2001. Comparative analysis notes that ILO migrant worker Conventions have generally achieved objectives but States have resisted adoption of any standards on treatment of non‐nationals. A counter‐offensive against human rights as universal, indivisible and inalienable underlies resistance to extension of human rights protection to migrants. A parallel trend is deliberate association of migration and migrants with criminality. Trafficking has emerged as a global theme contextualizing migration in a framework of combatting organized crime and criminality, subordinating human rights protections to control and anti‐crime measures. Intergovernmental cooperation on migration “management” is expanding rapidly, with functioning regional intergovernmental consultative processes in all regions, generally focused on strengthening inter‐state cooperation in controlling and preventing irregular migration through improved border controls, information sharing, return agreements and other measures. Efforts to defend human rights of migrants and combat xenophobia remain fragmented, limited in impact and starved of resources. Nonetheless, NGOs in all regions provide orientation, services and assistance to migrants, public education and advocating respect for migrants rights and dignity. Several international initiatives now highlight migrant protection concerns, notably the UN Special Rapporteur on Human Rights of Migrants, the Global Campaign promoting the 1990 UN Convention, UN General Assembly proclamation of International Migrants Day, the 2001 World Conference Against Racism and Xenophobia, anti‐discrimination activity by ILO, and training by IOM. Suggestions to governments emphasize the need to define comprehensive, coordinated migration policy and practice based on economic, social and development concerns rather than reactive control measures to ensure beneficial migration, social harmony, and dignified treatment of nationals and non‐nationals. NGOs, businesses, trade unions, and religious groups are urged to advocate respect for international standards, professionalize services and capacities, take leadership in opposing xenophobic behaviour, and join international initiatives. Need for increased attention to migrants rights initiatives and inter‐agency cooperation by international organizations is also noted.     

Migration and Human Rights on the Mexico-Guatemala Border

This paper identifies the protections in place for irregular migrants on the Mexico‐Guatemala border and analyzes Mexican government immigration enforcement policies and levels of compliance with international standards and national law. The history of the Mexico‐Guatemala border region and different types of migration flows into and through the area are also explored, as well as the linkages between migration, trade, security, and US immigration policy. It is argued that the Mexican government has partially complied with international conventions and national laws to protect the human rights of transmigrants in the Guatemalan border region, but that compliance is not complete and that an international response is required to ensure that human rights standards are upheld.     

Not Bound but Committed: Operationalizing the Global Compact on Refugees

The Global Compact on Refugees is not legally binding, but it gives rise to commitments by the international community as a whole. It is also rooted in international refugee law, international human rights law and international humanitarian law. This article addresses how the GCR cannot give rise to binding obligations in international law, yet provide for enhanced protection and assistance to refugees and hosting communities, and establish commitments for a fairer and more predictable sharing of burdens and responsibilities. It does this by reference to other non‐legally binding international documents and rules of law. Additionally, the use of indicators to measure states’ and other international actors’ performance in operationalizing the GCR provides a framework to measure commitments; coupled with greater humanitarian and development co‐operation, commitments can be better facilitated even if the GCR is not legally binding. Finally, the sharing of burdens and responsibilities is also fulfilled by the emphasis on solutions.     

Effects of international law on migration policy and practice: the uses of hypocrisy

Classical learning recognizes no role for international law in affecting migration policy and practice, but in modern times the salutary effects are increasing, although they remain modest. International law influences migration policy primarily through effective invocation of various forms of "soft law" in internal and international political forums. More limited prospects exist for beneficial changes enforced by international institutions and domestic courts. The article cautions against inflated expectations in the latter settings, however, particularly because overly ambitious claims can be counterproductive. It then offers a few predictions about near-term effects of international law, having to do with departures from a country, refugee law, and the integration of migrants into their new homelands.     

Rights Spaces: An Exploration of Feminist Approaches to Refugee Law

The exigent needs of refugee women necessitate feminist attempts to use legal mechanisms, however imperfect, to their benefit. However, the temptation to overestimate the importance of feminist gains in this realm must be avoided due to current constraints within the international refugee regime. Most forcibly displaced persons never reach the borders of western countries to claim asylum. Moreover, western 'refugee-receiving' countries are effectively closing their borders to migration claimed on strictly humanitarian grounds. Therefore, while feminists have successfully claimed a place for refugee women within protective rights mechanisms, they have been granted only a small portion of what is already extremely finite territory. Given this troubling state of affairs, I suggest that although proven avenues within refugee law must not be abandoned, the time is right for the sustained exploration of new and creative modes of engagement within refugee rights discourse. In this vein, the second half of the paper draws extensively upon the work of feminist legal theorist Jennifer Nedelsky to suggestively consider some possible alternatives for feminist theory and praxis.     

Shortcomings and/or Missed Opportunities of the Global Compacts for the Protection of Forced Migrants

The Global Compact for Safe, Orderly and Regular Migration (GCM) and the Global Compact on Refugees (GCR) are norm‐creating exercises, in the sense of being international legal documents for a new framework that reinforces existing structures and attempt to renew migration governance globally. They were expected to further develop the protection of all migrants. However, despite some progress, there are shortcomings and/or missed opportunities in what they were able to achieve, especially in the case of the protection of forced migrants. Understanding these shortcomings and/or missed opportunities as being conceptual and institutional in nature, and to assess both these sets, this article presents the idea of forced migration and the lack of international protection of forced migrants (part 1), describes the protection of forced migrants achieved by the Compacts (part 2), and ends by assessing the shortcomings and/or missed opportunities in both Compacts (part 3).     

International migration policies: conceptual problems

Kritz reviews national concepts and policies of migration. She examines how nation-states approach migration and how they define who is a migrant. Policies for permanent, temporary, and illegal migrants are examined for selected countries. While the traditional permanent immigration countries--Australia, Canada, New Zealand, and the US--continue to admit large numbers of permanent migrants, they are also admitting growing numbers of temporary migrants. Other countries, in Europe and the developing world, have different migration histories and use other approaches to admit foreigners--migrants are generally admitted on a temporary basis for work or other purposes. Growing numbers of these temporary migrants, however, do become long-term or permanent settlers, and the distinction between permanent and temporary migration policies becomes a short-term legal one rather than a long-term sociological one. Governments have been seeking those policy instruments that would allow them to improve control over who enters and settles in their territories, and temporary migration policies are the measures to which they are turning. While increasing restriction characterizes the policy stance of most countries toward international migration, this does not necessarily mean that the number of migrants entering is declining. Kritz argues that the concepts employed by countries in their immigration policies frequently do not correspond to the reality, making it necessary to examine the actual context.     

Protection of Migrants' Human Rights: Principles and Practice

In principle, migrants enjoy the protection of international law. Key human rights instruments oblige the States Parties to extend their protection to all human beings. Such important treaties as the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights have been ratified by more than 140 states, but many political, social or economic obstacles seem to stand in the way of offering those rights to migrants. In an attempt to bridge this protection gap, the more specifically targeted International Convention on the Protection of All Migrant Workers and Members of their Families was created and adopted by the United Nations in 1990. This treaty is not yet in force, but the number of States Parties is increasing towards the required 20. In the past few years the human rights machinery of the United Nations has increased its attention towards migrants' human rights, appointing in 1999 the Special Rapporteur on the Human Rights of Migrants. Governments, as the acceding parties to international human rights instruments, remain the principal actors as guardians of the human rights of all individuals residing in their territories. Receiving countries are in a key position in the protection of the migrants that they host. However, active defence of migrants' rights is politically difficult in many countries where anti‐immigrant factions are influential. Trafficking in migrants is one example of the complexity faced by states in formulating their migration policies. On the one hand, trafficking has made governments increasingly act together and combine both enforcement and protection. On the other, trafficking, with its easily acceptable human rights concerns, is often separated from the more migration‐related human smuggling. The latter is a more contentious issue, related also to unofficial interests in utilizing cheap undocumented immigrant labour.     

Towards the elsewhere: discourses on migration and mobility practices between Morocco and Italy

The objective of this article is to analyse the preparation process of young Moroccan migrants intended to migrate to Italy. My focus is on the personal and collective formulation of their desire to leave and on concomitant action taken to bring about these aspirations; highlighting the complexity of the imagination, which migration – and expected return – entails. A second point of interest is the agency exerted by such youth, as they prepare for departure; even when they have not yet physically left the country. In addition, my observation is focussed on networks emerging as a result of having to deal with state-imposed, migration restrictions, as well as with the politics of humanitarian agencies and NGOs. I argue that these aspiring migrants project themselves into the future and act in accordance with what they long to become. They shape themselves as mobile subjects through a process of self-making to overcome the above-mentioned constraints.     

Temporary and illegal labour migration: the Israeli experience

In recent years, Israel has become a major recipient of documented and undocumented temporary labour migrants from many countries outside the Middle East region. The purposes of this article are to describe Israel's experience of temporary labour migration and its concomitant, illegal labour migration; and also to explore what her policies on temporary labour migration indicate about the nature of the policy-making process in this policy domain in Israel.
To these ends the article traces the evolution of temporary labour migration – legal and illegal – and recent policy initiatives of the Israeli government. It then considers some of the major conceptions of the policy-making process found in public policy literature. The article concludes by pointing to the uniqueness of Israel's experience of temporary labour migration and to the fact that her policies have been overwhelmingly reactive – inadequately considered, ill-conceived, ambivalent in relation to their ultimate purpose and, in the course of implementation, vulnerable to "privatization" (being taken over by vested interest groups).
Analysis of the most recent policy initiatives designed to reduce the number of legal labour migrants and address the problem of illegal labour migrants, reflect a policy-making process that is not followed by commensurate action.     

Averting Forced Migration in Countries in Transition

Many countries of emigration are in transition from conflict to peace and from authoritarian to democratic governments. Addressing population movements from these countries requires more than economic opportunities; equally important is the establishment of the rule of law, respect for human rights, and, in countries recovering from conflict, reconstruction of destroyed infrastructure and housing. Otherwise, fragile peace and democratization processes can easily break down, creating new waves of forced migrants and hampering efforts towards repatriation and reintegration of already displaced populations. This background paper discusses the nature of forced migration, pointing out that the end of the Cold War has produced new pressures and new opportunities to address these flows. While extremism, particularly rampant nationalism, has provoked massive forced migration in many parts of the world, the changing geopolitical relations has also led to peace settlements in some countries and humanitarian intervention to reduce suffering in others. Addressing forced migration pressures in countries in transition requires comprehensive policy approaches. Four types of best practices are considered in this paper. First, mechanisms to ameliorate the causes of forced movements, including the role that expatriate communities can play in strengthening the rule of law and respect for human rights, particularly minority rights. Second, mechanisms that enhance refugee protection while minimizing abuses of asylum systems, including enhanced respect for the refugee convention, adoption of complementary forms of protection when the refugee convention does not apply, strengthened regional protection, and the establishment of in–country processing of refugee claims. Third, mechanisms to resolve the longer–term status of forced migrants, including decisions on when to cease refugee status and temporary protection and encourage/permit return or integration. Fourth, mechanisms for more effective repatriation when return is possible, particularly programs to help returnees reintegrate and communities reconstruct themselves.     

Legal Adaptation Among Vietanmese Refugees in the United States: How International Migrants Litigate Civil Grievances During the Resettlement Process1

This article examines an overlooked dimension of adaptation among international migrants: how they use the host society's legal system to seek redress for grievances that arise during the resettlement process. The article terms this process legal adaptation and focuses on foreign‐born plaintiffs in civil litigation. A sample (N=137) of state and federal civil cases with at least one Vietnamese litigant is used to analyze the temporal patterns in legal adaptation among Vietnamese refugees from 1975 to 1994. Several aspects of Vietnamese litigation match their macro‐level resettlement process, such as civil rights and intraethnic litigation occurring later than other types of cases. But civil suits with a Vietnamese plaintiff and a native defendant tended to occur earlier than civil suits with a native plaintiff and a Vietnamese defendant. The article identifies the role of legal organizations and international grievances as the sources of Vietnamese refugees' rapid legal adaptation.

相似文献