The Future Legal Management of Mass Migration
| Author | Jack I. Garvey |
| Position | Professor, University of San Francisco School of Law. J.D., Harvard Law School, 1968; A.B., Harvard College, 1964. |
| Pages | 121-169 |
The Future Legal Management of
Mass Migration
J
ACK
I. G
ARVEY
*
I. Introduction
International refugee law is being tested as never before. The legal
systems in place for asylum determination, resettlement, or repatriation, so-
called “durable solutions” to refugee crises, are severely stressed and often
overwhelmed. Commentators commonly cast refugee law and its
procedures as relics of the post-World War II management of the migratory
consequences of the Nazi persecutions—as conceived within a relatively
homogeneous European culture, unfit to the challenges of contemporary
migrations that now occur on a global scale.
Though the legal foundation for response to refugee migrations remains
the Refugee Convention of 1951 (Refugee Convention), international
refugee law appears to be increasingly irrelevant to what refugees do, and to
what states do in response to refugee movements.
1
Migrants ignore the
rules, charging across borders as best they can in desperate attempts to
achieve security and better lives. National governments react by giving
priority to deterrence strategies and tighter border control, as evidenced
most dramatically today by the closing of the Balkan Route during the so-
called “European Refugee Crisis” and “the wall” proposed for the U.S.-
Mexico border. This is done not only through enhancements of national
law, but also through new efforts to implement regional deals and bilateral
deals on migration and border regulation.
International refugee law and the institution directly charged with its
administration, the Office of the United Nations High Commissioner for
Refugees (UNHCR), have evolved to adjust well beyond origins of the post-
World War II context of the Nazi persecutions. And the UNHCR is only
one among a mix of many international organizations that have evolved to
deal with mass migration. Others include the International Migration
Organization, informal networks such as The Intergovernmental
Consultations on Migration, Asylum, and Refugees (IGC), and numerous
non-governmental organizations (NGOs). The UNHCR, as the most
prominent institutionalized administration, has grown to an agency of over
10,000 staff and administers a broad range of protective services, including
* Professor, University of San Francisco School of Law. J.D., Harvard Law School, 1968;
A.B., Harvard College, 1964.
189 U.N.T.S. 150.
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122 THE INTERNATIONAL LAWYER [VOL. 51, NO. 2
refugee camps, some containing hundreds of thousands of human beings.
2
UNHCR was not intended to be an operational humanitarian agency, but
has adapted as necessary to try and fill the need. As for law, it is no longer
only the Refugee Convention that governments and NGOs apply, but a
hybrid comprised not just of refugee law, but also norms of humanitarian
law concerning humane protection and human rights law directed to values
of human dignity.
Inherent to legal response to mass migration, however, is a severe tension.
On one side are the aspirations and imprecations of refugee law, human
rights, and humanitarian law. On the other is national sovereignty and
national political culture, wherein mass migration is increasingly perceived
as threatening domestic order and constituting back-door avoidance of
national control over immigration.
The following analysis argues that the Refugee Convention has been, and
continues to be, serviceable in its fundamental design—that provides a viable
framework for reconciling sovereignty with the imprecations of
humanitarian and human rights norms. The essential thrust of the
Convention is to reconcile sovereign interest with these normative
standards. There is, indeed, despite the challenge, still virtually universal
acknowledgement of the most fundamental rights enshrined in the
Convention. The principle of non-refoulement
3
and concomitant rights of
asylum remain the normative framework on which states depend for
legitimacy in response to mass influx. There is still consensus among states
that supports the principles of non-refoulement and the right to asylum as
universal and absolute, even to the extent that non-refoulement is claimed to
be of the status of jus cogens.
4
Refoulement, when it does occur, is invariably
accompanied by protest as the referent norm for state conduct.
5
2. About Us,
UNHCR
, http://www.unrefugees.org/about-us/ (last accessed Feb. 5, 2018).
3. “Non-refoulement” refers to the hallmark principle of international refugee law,
enshrined in the Refugee Convention, that no contracting stay may refouler a refugee. To
refouler a refugee means “expel or return . . . a refugee in any manner whatsoever to the frontiers
of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.” Refugee Convention,
supra note 1, at art. 33(1). The Right to Asylum comes from Article 14 of the Universal
Declaration of Human Rights, which states that “[e]veryone has the right to seek and to enjoy
in other countries asylum from persecution.” G.A. Res. 217 (III) A, Universal Declaration of
Human Rights, at art. 14 (Dec. 10, 1948) [hereinafter Universal Declaration of Human Rights].
4. Cases from the European Court of Human Rights acknowledge as much. See Hirsi Jamaa
v. Italy, 2012-II Eur. Ct. H.R. 97 (2012) (De Albuquerque, J. concurring), http://hudoc.echr
.coe.int/app/conversion/pdf/?library=ECHR&id=001-109231&filename=001-109231.pdf;
Nada v. Switzerland, 2012-V Eur. Ct. H.R. 213 (2012), http://hudoc.echr.coe.int/app/conver
sion/pdf/?library=ECHR&id=001-113118&filename=001-113118.pdf.
5. See Poland, Bulgaria, Czech Republic, Hungary and Slovenia: Pushed Back at the Door,
E
UR
.
C
OUNCIL ON
R
EFUGEES AND
E
XILES
(Jan. 27, 2017), https://www.ecre.org/poland-bulgaria-
czech-republic-hungary-and-slovenia-pushed-back-at-the-door/ and its associated report from
five European Refugee Non-Governmental Organizations (“NGO”). Moreover, the
international human rights community is wary of any fundamental reconstruction of the
Convention for fear it would be retrograde for non-refoulement, if done in the current climate of
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2018] FUTURE LEGAL MANAGEMENT OF MASS MIGRATION 123
But for refugee law to address contemporary mass migration, it must no
doubt meet the challenges of a distinctly new dimension. That new
dimension is the global confrontation of economic, cultural, and other
previously contained disparities that now intersect in explosive
reconfiguration of human beings on this planet. Approximately one in every
113 people will be involved in such migrations, per the June 2016 estimate of
the UN High Commissioner for Refugees—upwards of 65,000,000 human
beings.
6
Multitudes of people migrate, fleeing political failure and war, the
impacts of global warming, economic disparity, and global environmental
degradation, generating tectonic tears that rip through the fabric of human
communities.
Therefore, for refugee law to be relevant today, it must be an enterprise of
designing anticipatory systems to accommodate disruptive population flow
on a scale and kind never encountered. Today, even the principle of non-
refoulement is being challenged. When the Refugee Convention came to be
in 1951, there was little foreseeing the political, economic, and
environmental drivers that today go well beyond personal persecution.
Today, mass migrations include a mix of motivations; a migrant fleeing his
country due to a “well-founded fear of persecution” certainly fits the
definition in the Refugee Convention,
7
but also migrants are fleeing because
of economic and environmental forces and encounter state interests that
vary broadly in their substance and intensity. Refugee law must now
comprehend the entirety of this extraordinary mix.
The analytical need, therefore, is a lens, a refinement of perspective to
understand and improve the legal management of mass migrations, wide
enough to comprehend the scope of the challenge, but discerning enough to
account for the inherent complexity and diversity of the problems and
available response strategies. The objective of this paper is to provide that
lens.
terrorism induced insecurity, and its companion psychoses, resurgent nationalism and
xenophobia. See James C. Hathaway, A Global Solution to a Global Refugee Crisis, 1
E
UROPEAN
P
APERS
93, 93–99 (2016), available at http://www.europeanpapers.eu/en/e-journal/global-
solution-global-refugee-crisis.
6. U.N. High Commissioner for Refugees, Global Trends: Forced Displacement in 2015, at 2
(June 20, 2016), www.unhcr.org/576408cd7.pdf (reporting that 65.3 million individuals
worldwide were displaced by the end of 2015 because of persecution, conflict, generalized
violence, and human rights abuses).
7. The Refugee Convention defines someone as a refugee as someone:
[W]ho owing to a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion, is
outside the country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not having a
nationality and being outside the country of his former habitual residence as a result
of such events, is unable or, owing to such fear, is unwilling to return to it.
Refugee Convention, supra note 1, at art. 1(A)(2).
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PUBLISHED IN COOPERATION WITH
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