Professor Goodwin-Gill's address on 'Regulating “Irregular” Migration: International Obligations and International Responsibilities'
Published on the 10 Jul 2015
Professor Guy Goodwin-Gill, a member of the Kaldor Centre's Advisory Committee, gave an address to an international workshop held by the National and Kapodistrian University of Athens Faculty of Law, 20 March 2015.
Thirty years ago we knew that there was a demographic and economic crisis on the horizon. We knew, because the ILO told us. We knew just how many young people would be entering the work force in the developing world; we knew how many jobs would be required; we knew that regular migration to the developed world could provide only a small percentage of solutions, at best; and we knew, too, that conflict, turmoil, upheaval and displacement would likely still be with us.
And what did we do? Essentially, we did nothing. We put our heads in the sand, crossed our fingers, and hoped that the inevitable would never happen. Well, it did, as the inevitable generally does. And the price is being paid today, in lives lost in flight and in transit from situations we saw coming, and in the floundering ineffectiveness of regional and national policies.
Of course, emigration and immigration touch the self-interest of States, and selfinterest can and does lead to inaction. For long, the prevailing view was that these matters fell pre-eminently within the reserved domain of domestic jurisdiction, and that they were therefore subject to the absolute and uncontrolled discretion, or sovereign power of the State, and therefore unsuited to international regulation.
There was good historical authority for this view, but the picture was always rather more complex. Even in the nineteenth century, the treatment of the foreigner, once admitted, was indeed seen by many States as engaging international law, and as justifying the exercise of diplomatic protection in defence of an international minimum, if somewhat uncertain, standard. And the practice of States in relation to the protection of the rights and interests of their citizens in other countries played a major part in the development of what we now call the rules of State responsibility.
Today, there is a new reality. The General Assembly calls it a multidimensional reality. It is the product of a certain dynamic in relations between States, generated in part by globalization, and in part by inescapable facts, for example, that migration cannot be ‘managed’ unilaterally, let alone turned off.
At the same time, the persistent illusion of an absolute, exclusionary competence remains a matter of concern, because it tends to frame and direct national legislation and policies in ways that are inimical to international co-operation and, not infrequently, contemptuous of human rights.
Although we can quibble about the exact start date, ‘irregular migration’ is largely a product of the late twentieth century, reflecting the desire of certain States to impose (their) order on that particular human activity which is the movement of people across borders. ‘Irregular migration’ is thus a State construct which, currently at least, is little represented in international law. The irregular migrant, like the migrant, is not defined by international law, other than by reference to his or her common humanity. Nor does international law prescribe what States shall do (as opposed to what they may not do), confronting this product of their own idiosyncratic view of the migrant on the move.
There is a gap, then, or the perception of a gap, in the regulatory framework. Or perhaps the problem is not a gap, so much as an opportunity – like today – to bring together and to synthesize what we already have learned and what we are learning with regard to migrants and refugees in transit, in detention, in search of protection, in limbo, in distress atsea, in need of disembarkation in a place of safety, in need of resettlement... Read the full speech.