International law on the rights and protection of migrants

Written by Sabrina Axster

International migration has increased significantly over the past decades. More than 60 million people were displaced from their homes in 2015 — the highest number since World War II. And the latest estimates for the total number of international migrants worldwide say that it is at a total of 232 million or 3.2 percent of the global population.

The movement of people across borders is by far one of the most international issues there is, and yet there is no comprehensive international law on migration. While there are a number of of international conventions that include passages pertaining to migrants, directly or indirectly, there are very few that solely address migrants’ protection and rights.

So why hasn’t more been done to protect the people around the globe who voluntarily leave or are forcefully displaced from their homes every year? The answer, of course, isn’t exactly simple. First, let’s take a look at three treaties and conventions that are meant to protect migrants.

The 1948 Universal Declaration of Human Rights

The international human rights regime began to fully develop after the Second World War. In 1948, the United Nations General Assembly adopted The Universal Declaration of Human Rights. The first article of the declaration states that “all human beings are born free and equal in dignity and rights,” and the ensuing articles proceed on enumerating the basic rights and fundamental freedoms to which any individual is entitled. Two articles touch directly upon migration: Article 13, which recognizes the right of emigration, and Article 14, which provides for the right to seek and enjoy asylum from persecution. Although a landmark document in the history of human rights, the declaration however is not legally binding.  

The 1951 refugee convention

When it was first adopted in 1951, the Convention and Protocol Relating to the Status of Refugees became the cornerstone of the international legislation governing the legal status and rights of refugees, a specific category of migrants. As of April 2015, there were 145 states that had ratified the convention, including many receiving countries (countries of destination of migrants).

The convention defines a refugee as someone fleeing from fear of persecution. Reasons for persecution can include anything from race, religion, and nationality, to membership of a particular social group or political opinion. The person should be outside her/his country of nationality and unable to return to it or to receive protection from it.

Today, there is an ongoing debate on whether the refugee convention has become outdated and irrelevant, in the changed global context. Some countries and commentators argue that the definition of a refugee is too narrow, and should be expanded to include people fleeing from poverty or due to other economic reasons, or as the result of the effects of climate change and global warming. But many remain opposed to any revision of the convention and believe in its continued importance (see “A ‘Timeless’ Treaty Under Attack”). In the current political climate, it is likely that an attempt to renegotiate the convention would fail or even weaken it. Read a more detailed overview of the discussion here.

The 1990 convention on migrant workers

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which was adopted in 1990, is the only other international agreement that deals solely with migrants, in this case migrant workers and their family members. The convention applies to all migrant workers regardless of their legal status and seeks to guarantee their most fundamental human rights are protected during the entire migratory process, including preparation, departure, transit, and the eventual stay, residency, and employment in another country.

The problem is that the convention’s impact is still extremely limited. It took over ten years for the text to take effect, after the necessary 20 ratifications were reached in 2003. And as of 2015, still only 48 countries had ratified it. Also, those that ratified the convention are primarily sending countries (migrants’ countries of origin), which further limits its impact. Major receiving countries have yet to become parties to the convention.

So…why aren’t these more stringently enforced?

In short, national sovereignty.

One of the first stipulations in Article 2 of the UN Charter is that the UN may not intervene in the domestic affairs of states. This remains the cornerstone of the debates on migration, and is the reason there is still a lack of comprehensive, effective international laws guaranteeing the rights, protection, and security of migrants.

The state remains the most powerful actor in deciding who it admits into its country and on what basis, and how it governs migration. At the national level in many countries, migration remains a very divisive issue — as can be seen for example in the current US presidential campaign. Often, because of internal pressures, governments do not want to be perceived as giving up any control over immigration flows. So, they often support restrictive migration policies even though they have proven largely ineffective in reducing migration inflow. On the international level they continue to hold on to these so-called “symbolic policy instruments,” which articulate aspirations to improve migrant issues, but don’t necessarily lead to change.

Another barrier to developing effective international laws to protect the rights of migrants is the difficulty of enforcement. Even legally binding treaties and conventions rarely ensure punishment in cases of non-compliance. However, this is hardly a problem limited to migration issues, but to international law in general.

If you’re interested in reading about the additional international agreements pertaining to migrants, Notre Dame Law School prepared a handy Compendium of International Legal Instruments on Human Migration.