1. Irregular migration, state sovereignty and the rule of law Catherine Dauvergne ‘This Chapter situates contemporary contestation over migration within the context of carly twenty-first century globalization." It is a clear marker of ¢ho-politcs of this terrain that key concepts in this stage setting exercise are irregular migration, state ‘This Chapter tndertakes to explain why ough: under conditions of globalization imperilled. This transformation means control over migration than in any previous is now more important to migration than at any that the range of issues currently intricately intertwined. For this reason, each topic in this book, each ‘migration law issue" can be illuminated by setting it alongside ‘each other one. The source of this illumination is how sovereignty, and thus law, is responding to globalization, ‘The analysis here proceeds by first talking about where the idea of, ‘iregular ‘migration’ comes from, followed. by a discussion of the state of sovereignty at the f the twenty-first century. The third section illustrates the connectivity thesis: sights, but that have long been ww features are emerging on the where migration directed law making has been pointedly absent.16 Research handbook on international law and migration 1. WHAT'S IN A NAME? MAKING PEOPLE ILLEGAL In the migrant advocacy community, there is great opposition to calling ‘a coon squarely where it belon the past to to three decades is that people seek to counter this activity with alls for more and. elimination of immigration law will not be taken imemnational politcal arena. Powerful States seek to ramp ‘mercifully they seek to do this through expanding their legal powers of contol, and translating those legal powers into enforcement mechanisms. Weak States that presently owes sein selon el Dede, aspire to this same standard. The it suffices to say that it ippewhispani. corgfilesiepontsi61.paf, bistorically unprecedented because possible to transgress and the billions78 Research handbéok on international law and migration Families© This Convention took the significant step of explicitly extending its protection 10 both documented and regular workers and, to use its terms, “undocu ‘mented! or “iregular’ workers, thus tackling the persistent problem of “illegal” workers {nding that thei status isa bar to any labour law protection, contract law protection, or indeed access to the courts. The Convention's Preamble specifically acknowledges; “... that workers who are non-documented or in an irregular situation are frequently ‘employed under less favourable conditions of work than other workers and that certain ‘employers find this an inducement to seek such labour in order to reap the benefits of ‘unfair competition’. But despite this, the Convention's entitlements for ‘irregular’ workers are signifi workers.” Add to these deficits the facts that it took a decade for the Convention. to ‘come into force, that no prosperous Western State has ratified it, and that it only applies to ‘workers’ and their families, rather than to ‘people’, and the Convention truly stands as a marker of the interconnectedness of globalization, sovereignty and illegal migration, : Against this, it is crucial to emphasize that rights advocacy ‘on behalf of those without migration status is typically the only legal tool available, and is sometimes an effective route to incremental improvements in material conditions. But it will never remedy the vulnerabilities created, and human rights abuses fostered, by lack of status. ‘The proposition that law makes, and cannot ‘unmake’ illegal migration, is a first step in understanding the contemporary importance of illegal migration. In order to further tunderstand the current landscape, it is vital to look at law's underpinning in-state sovereignty, and how this has been shaken by globalizing forces. © ‘Intemational Convention on the Protection of the Rights of All Migrants Workers and ‘Members of Their Families, 2220 UNTS 3, 18 Dec. 1990 (entry into foree: 1 Jub 2003). > The conirast between Part Il of the Convention setng ott ight fr all migrant workers, and Part IV of the Coavention listing rights for those in a egularsitwation’ is notable. Ar. 68 reads: ‘States Parties, including States of transit, shall ‘with view to preventing tnd eliminating illegal or clandestine movements end c: 3 OF migrant workers in inregular situation. The measures to be taken to this end within the jurisdiction of each State ‘concemed shall. include: (a) Appropriate measures against the dissemination of misleading information relating to emigration and immigration: (b) Measures to detect and eradicate illegal or clandestine movements of migrant workers and members of their families and to impose dation against families in an iregular situation. 2. States of employment shall take all adequate and effective measures to eliminate employment in their teritory of migrant workers in an iregular situation, including, whenever appropriate, sanctions on employers of such workers, The rights of migrant workers visd-vis their employer arising from employment shall not be impaired by these Irregular migration, state sovereignty and the rule of law 79 2. SOVEREIGNTY AND TWENTY-FIRST CENTURY GLOBALIZATION Although it is impossible to imagine prosperous twenty-first century nations without comprehensive immigration regulation, the twinking of migration control and state sovereignty is a comparatively new development in the evolution of nation States. As States emerged in the sixteenth century, borders remained comparatively open to ® The concept of sovereignty emerged in this early era without tention to migration control. Indeed, in the most recent wave of intensive jon (aside fom the present) which occurred in the late 1800s, migration ‘was not a significant issue. Many of those who moved from Eilrope or its ies to settle the so-called ‘new’ world, would be barred from migration in the crossing international bor control has continued thro: rule, for example through of the United Kingdom), or deed, movement toward comprehensive migration the ensuing century to°eliminate exceptions to this that had been created out of inter regulating migration intemations national level issue to an intemational concern. This suggestion was firmly rejected in the 1920s, part of the shift towards viewing control over border-crossing as intimately intertwined with nationhood. It became the case, therefore, that control over migration ‘deportation and the like - came to be es, transforming migration control from a al legal framework for these areas of that States have exclusive control over only required to adm ional ), States may exclude 0 so far as to urge80 Research handbook on international law and migration sole constraint on a State's power to exclude at its borders all who are not citi therefore, found in the Convention. And even here the ‘right of entry’ stated directly. Instead 1 implied from the obligation to offer protection, the prohibition agains 1g refugees who enter in breach of immigration law provisions." This c sovereignty accounts for refugee law's importance to the rule of Jaw, as we shall see below, but can hardly be described as a bold international commitment to establishing terms for border crossing. Rather, the structure of the Refugee Convention signals the importance of control over borders ‘which had emerged by the time the Convention was agreed to in the middle-of the twentieth century: even when the need for a right of entry was obvious, consensus did not emerge 10 say so directly rast to a century ago, at the outset of the twenty-first century migration ‘understood as a core element of sovereignty, and an increasingly vital one at routinely perceived as part of wt to be a nation. In the common law tradition, this intertwining has such an elevated status that immigration control is now read as an offshoot of the Reyal Prerogative ~ the histone eore of power associated withthe sovereign itself, the very essence of statehood.!5 T have deserted the tvenith ceamry shift as tranformiig migration contol into Irregular migration, state sovereignty and the rule of law 81 tuave introducing increasingly sophisticated biomewic screen United States-Mexico border? amending the German Con ratcheting up of migration regulation in myriad large and smal the same period of time, the estimated number of illegal migrants increased. In the United States, the illegal population was est grown to 11 million by 2009. All of ted at 3-4 million in 1993 and had is completely foreseeable based on iy empirically demonstrated over the past two decades, T is no longer argae that the current mechanisms for reducing illegal migration are spite this, however, policy innovation is moribund. States are unwilling to “ ‘manner of enforcement: An important example of this is the 2005 final report of the Global Commission on Intemational Migration. This Commission, established with ‘mandate to address migration concems at an international level, and blessed with rigration control with sovereignty also. sharp cooperation. In the area of migration regulation in the postgloBalization er, the sole {focus of international cooperation isthe reinforcement of national borders. To this end, ‘Devaluation of Refugee Protection’, Comell iaemasionel Law Journal, 25(3), wn Tn 935, peandnal comhew¥potcvane- "UC. Davis Journal of International82 Research handbook on international law and migration cms a tec apn dnd nt meee eh Serene ts oe ee Sock Sri an tarde pec eateries” fe orien Sateen erate os Workers’ Convention serves as an pet genom migrants pete aed eternity aes seers cece ea Goce a a ey cine een ee fe tan ooh an ae oe omer fe ta ae eee Metals ae Horse aera ety antes pa ee ere ced mentees ee kage wih emia or ferris ary messes sich a bometic Seg Sogepting of etn nd Stetn of peop sing spo. this cote the word experoncing te ft major wave of mgt i of migran relation. In 1955, ld sn i neon the ‘migration seeps into every area of migrat to be statistically overshadowed by its hegemonic. 333-49; S. Watson, Securitization of Human ts, Abingdon, Routledge, 2009, ‘and Ideas of Membership, Oxford Refugee Studies Centre Working Held eta, Global Transformations se No 65, Jak 2010, Irregular migration, state sovereignty and the rule of law 83, development is overshadowed ‘One effect of this discursive hegemony is that bby unstated assumptions about what would recently as the 1980s, it was possible to discuss the concept of open border type of thought experiment has disappeared from reasoned immi; recent years. It has been replaced by an unstated ‘quasi-co ‘policy-makers know what would happen if the borders were open: the prosperous liberal democracies of the Global North would be overran, and under the sovereignty ‘emasculating influence of human rights, would be helpless to do anything about it "The spectre of an influx from poorer, sicker, browner, the unspoken backdrop to contemporary regulatory development, and the rise of illegal migration statistics ae all the evidence required to cement this logic. legal migration is, thus, the tip of the proverbial iceberg. "A second effect of the discursive hegemony of illegal migration is the intertwining of all sites of migration concern. It is to this quagmire that I turn next. 3. LIBYA, BLUEBERRIES, PROSTITUTION, SHOE BOMBS In 2011, the most high profile eruption of extra-legal migration into prosperous Western States was the arrival of tens of thousands of migrants on the Italian island of ‘Lampedusa.*° This influx was sparked by the popular uprisings of 2011's “Arab Spring” in Tunisia and Libya, and the concomitant collapse of agreements between those States and Italy to exercise (Southern) State power to prevent departures. While in the case of Tunisia many of those who left were nationals, the early stories emerging from Libya suggested that most of those departing were not Libyan citizens, but were, rather, migrant workers from States elsewhere in Africa. The ‘tay, where responses included organizing an allocatior regions of the country, and granting a special humanitarian right to remain to all those ‘who had arrived between 1 January and 5 April 2 Europe, and included the French re-establishing border controls with Italy in open disregard of the Schengen agreement. SI” See Brusa & Papote,Zaly The Schengen Acquis — Agreement berween the Governments ofthe States ofthe Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual84 Research handbook on international law and migration ‘The Lampedusa moment ~ which is on-going as good place to begin tweak record of human rights protection, But even in sich circumstances, refugee aw requires an individual assessment, and thee has never been a case of mass movements ofthis type where every indvidoal has eventually been granted refugee stats. In the case of those fleeing Libya, it was clear from the outset that many of the migrants had citizenship in another State, and thus ostensibly had the option of returning to their State of nationality. ‘The flight of migrant workers niade two things clear. First, migrant workers were not ‘generally well-rested in Libya, and their expectations of general well-being dropped Siuply nce cof broke ou. the category now derisively termed ‘economic migrants’. And migrant workers may become refugees, or may even have been refugees: all along (because the theory of C. Haney & RP. Bamidge J, ‘Human Rights, Free Mov International Law’, Incernational Journal of Refugee Law, 11 r Irregular migration, state sovereignty and the rule of law 85 refugee status is inherent in the person, although tegory. The border lines here are not significant challenge for decision-makers. es people think they are refugees, but they are not into refugee status is an individual one, and I certainly do not mean to ‘any migrant worker fleeing Libya was not a refugee. The point is, rather, yn Lampedusa, a plea for refugee status was the only option available to narrative to support their activities. ce “The combination of a global crack down on migration and the desperate need for refugee protection by millions of people around the world creates a protected market86 Research handbook on international law and migration decision-makers to grapple with ‘measures that protect a market for smuggling also protect one line between the two functions primarily to assign culp smuggled are guilty; people who are trafficked are victims of an outrageous human rights abuse. This circuitous route takes us away from Larapedusa, but brings us closer to both industry, for example, @ ‘flexible’ workforce facilitates fluctuating world market. Migrant labour is often found ig. This creates an incentive to employ people lated incentive to employ people who are here ‘The problem involves all of these things at the very Jeast ~ and a regulatory shift in one area reverberates through each of the others, Blueberries have at least one thing in common with ined: The Driv o Unionize Foreign Seasoual Agricul n Greeoway Farms and UFCW", BC Studies, 169, 2011, Ts em aa ig the tm ‘pecarons sum’ Sec L, Goldin. 3” 200M interview with RCMP walicking enforcement office, Surtey, British Columbia, on fle with author. T Irregular migration, state sovereignty and the rule of law 87 about human trafficking first got widespread attention. There is a degree of moral panic despite this concer, there has been little effort to batle traffic ‘migration context. For example, while ‘special temporary visas’ to tfekng now exist onthe oak in te Unie Sites a5 vel a aly rely on smugglers. As state efforts to control illegal ‘migration mount, and there are fewer ways for those Wi to migrate, there is a greater incentive for peopl circumstances to attempt to claim refugee there is no other option. uaglers save lives, but this is terrorist attacks of 11. September “security studies’. Many of the most been marked by an ‘us’ and “the the United States in 2009. “© Only 304 T.Visas were approved for victims of taficking in88 Research handbook on international law and migration are ‘ferreted out’ from among other refugee claimants has risen appreciably, anywhere in the world. States are better-off investing security dollars elsewhere, the successful apprehension of the shoe-bomber and the underwear-bomber demonstrate this. There is With each move that foxes refugees towards smugglers ad wafficke, that tea is heightened. AAs scholars, researchers and policy-makers, we tend time. A glance through the table of contents of this volume i ‘We need to do this in order to have a detailed enough grasp can truly suggest ways forward, But it is also crucial to remember ‘on one problem at a nigraion, ‘cracking down’ satchets that esponsibility up. Global competition for very best foreign students is connected to both an can be transgressed and increased opporunities and State focus on high-skilled migrants risks neglecting secious need for lower skilled workers, and thus raises the incentive for employers, and thus employees (because they will be more highly valued) to move outside the, law. All the question of the relationship between law and igration. My assumption here is that up until this ‘concept, and it is deployed in a variety of registers, t especially confusing. The rule of law that I am interested in is the idea Irregular migration, state sovereignty and the rule of law 89 that there is an inherent core of value within the law itself Accordingly, law, while sharing much with other social ordering systems, is not identical to them. It is more - tion is also not solely one of and particularly in regard to the harms and vulnerabilities of illegal ‘human rights have been of very litle help. The tale of the Migrant Workers 1 draw on the work of Peter Fitpatick. See in particular P. Fitzpatrick, rounds of Law, Casibridge, “© See Stephen J. Toope and Jute Brunee’s imporant new foray in this-dteetion in SJ. Toape & 1, Bros, Legitimacy and Legality iniversity| ‘also Ft “90 Research handbook on Convention that I related activists felt, and still feel, this is that human rights ‘migrants generally, let Part of the reason for valuable tools, especially the same footing as citizens ores that are not permanent but they are not corapletely unrelated. The first is the Refugee Convention. It is easy to this Convention acts asa true constraint on sovereignty. What is more puzzling ‘were, for example, a trading relationship that they ‘They are instead behaving as though the C ties under the law, States persistently claim that they are complying with the Convention throughout all of these manoeuvres. The Refugee Convention has acquired some important heft as international law goes, States anne proven, Sarry modisctons Ths st could continue Irregular migration, state sovereignty and the rule of law 91 Parties view it as bind they can be “penal ‘The second example is ‘wheo there is no meaningful way that the solidity that the rule of law provi auticulating additional rights state ‘any other group, if there is not nding, develop of rights statem It is also tue that some recent decisions are also advancing human rights for ‘migrants, and that these advances are meaningful and contain the embryonic potential92. Research handbook on international law and migration to spread beyond their initial reach. The vecisi Rights in MSS. » Belgium and GreeceS* and Human Rights in John Doe et al. v. Canada both of these very recent victories are linked to the Refugee Convention, not to core aspects of the intemational bill of rights. Thus it becomes even more important to analyse and understand what gives the Refugee Convention its strength, 1 submit that the vitality of the Refugee Convention comes from its ability to the European Court of Human ‘understood by States, and in turn has become part of the reason thatthe ration has taken oa rule of law characteristics. In the face of globalizing this sense, acts as a pressure release for characteristics as the international community recogni contrary, its ethical core. the rule of law values we can now observe emerging in the international realm are in themselves a result of the relationship between migration law and sovereignty. 3 MSS. « Belgium and Greece (Judgment) (2011) Appl. No. 306960, John Doe etal v. Canada (21 Jul. 2011) Report No 78/11, Case 12.586, 2. National security, terrorism and the securitization of migration Idil Atak and Frangois Crépeau* In the aftermath of the terrorist attacks of 11 September, the fear of terrorism led to the reinforcement of antiterorist measures and of the security-related policy apparatus everywhere. The Madrid train bombings in followed by the London attacks a that has dominated asylom and freezing of assets, direcly targeted foreigners. Physical bariers have been increased as well as reliance ‘on technology. Migration has become an issue in the context of national security policy? In the formulation and implementation of counter-errorism strategies, principles of thuman rights law, refugee law and humanitarian law have been questioned. Despite increasing acknowledgment of the need for adequate protection of human rights and approach to explore the connection between ism and the securitization of migration. The aim is to.foster a ‘how the strengthening of State control over migrants, through, anti-terrorism measures, transforms the logic of domestic structures and public policies and how this phenomenon lowers protection standards The authors would lke to thank the Social Sciences and Humanities Research Council support. iadt, B. Speaker, D. Meissner & M. Chishi, Through the Prism of National Secury: Major mgr oy and Program Change Decade Since 911, inmige- ‘Council of Europe, The Commitee of Ministers" Guidelines on Human Rights and the Fight against Terroriem, Resoltion 7/1, 27 Mar, 2008, 93RCH HANDBOOKS IN INTERNATIONAL LAW Research Handbook on International Ahly orginal sexes offers a unique appraisal of the sate-of the-art of research aan aking in international law. Taking a thematic approach, each volume, edited by a Law and Migration nt expert, covers a specific aspect of intemational law or examines the onal legal dimension of a paricular stand of the law. A wide range of Siplnes in the spheres of both public and private law are considered; from ‘onal environmental law to intematibnal criminal law, from international eco aw to the law of intemational oganisstions, and from intemational commercial international human rights law. The Researck Handbooks comprise ‘carefully ssioned chapters from leading academics as well as those with an emerging on. Taking a genuinely international approach to the law, and addressing curtent tmetimes. controversial legal issues, a8 well as affording 2-clear substantive Soften hes Handbooks are designed to inform aswell 5 contbute 0 ebates, Edited by ly useful as reference tools or inzodvetions to spciic topic, issues and . » the Handbooks will be used by academic researchers, post-graduate students, Vincent Chetail ig lawyers and lawyers in policy circles. and a this series in sh Handbook on International Criminal Law Céline Bauloz by Bartram S. Brown - “a Hancock on ds Lew of Tcaoathdan Crpsntenioas Graduate Institute of International and Development Studies, Switzerland by Jan Klabbers and Asa Wallendahl 2h Handbook on the Theory and History of International Law by Alexander Orakhelashvili 2h Handbook on Laternational Sports Law bby James A.R. Nafeiger and Stephen F. Ross sh Handbook on International Conflict and Security Law Bellum, Jus in Bello an by Nigel D. White and sh Handbook on Inter: bby Vincent Chetail and Céline Bauloz RESEARCH HANDBOOKS IN INTERNATIONAL LAW.aitors and Contributors severally 2014 ‘us reserved. No part of this publication may be reproduced, sored in retrieval system ‘ited in any form or by any means, lckonie, mechanical or photocopying, ering, ‘vise without the prior permission of the publisher. ved by 1 Elgar Publishing Limited pats ‘down Road ham 150214 1 Elgar Publishing, Inc. 1 Pratt House 2y Court ‘mptos “setts 01060 ‘ogue record fortis book able from the British Library of Congress Control Number: 2013949795 vok is available electronically i the FigarOnline.com Law Subject Collection, EISBN 15793 005.7 18085793004 0 (cased) Contents List of contributors INTRODUCTION ‘The transnational movement of persons under general international law ~ ‘Mapping the customary law foundations of international migration law Vincent Cherail PART I CONFRONTING REALITIES IN TIMES OF GLOBALIZATION: ‘THE MOVE OF PEOPLE AND STATE SOVEREIGNTY 1. livegular migration, state sovereignty and thé rule of law Catherine Dawvergne 2. (National security, terorism and the securitization of migration Idil Atak and Francois Crépeau 3. Extateritoral migration control and the each of human sights, Thomas Gammeltof Hansen 4, Smuggling and trafficking of human beings Ryseard Piotrowicz 5. The removal of iegule migrants in Buope and America Stephen H. Legomsky PART Il HUMAN RIGHTS, ALIENHOOD AND CITIZENSHIP: IDENTIFYING THE GLOBAL NORMATIVE FRAMEWORK ‘6. Detention of migrants: Harsher policies, increasing international law 10. Diplomatic protection and consular assistance of migrants, 216 239 265