The overarching theme of this Annual Meeting is "Confronting Complexity." In the international law governing migration control, human rights norms have introduced complexity where rather stark simplicity once ruled. This is a welcome development. But its momentum may carry it to unwarranted extremes, losing sight of a complex balance that is needed for sound and durable migration management--which itself helps serve a wider panorama of humane objectives.
The simple international law of earlier times was captured in a classic passage from the U.S. Supreme Court:
It is an accepted maxim of international law that every sovereign
nation has the power ... to forbid the entrance of foreigners or to
admit them only in such cases and upon such conditions as it may
see fit to prescribe. (1)
This is direct and uncomplicated. Discretion rules. Migration management imperatives can have full sway--and regulation can embody any substantive values that the nation chooses, from strict autarky to migration promotion.
Thankfully, the legal picture did not freeze in that posture. Though some constraints appeared in earlier times, the period after World War II brought the major decisions and treaties that introduced human rights concerns more systematically into international norms relating to migration. The 1951 Convention Relating to the Status of Refugees was the most significant milestone, but it is a far more careful and limited document than much commentary now acknowledges. For example, key Convention provisions (especially Articles 1(F) and 33(2)) allow a state to privilege certain of its own strong interests and thus refoule someone who has committed serious crimes or poses a national security threat. Article 14 of the Universal Declaration of Human Rights also includes a cautiously phrased "right to seek and to enjoy" asylum from persecution, but it excludes most persons prosecuted for criminal acts. And Article 12 of the ICCPR grants an alien certain procedural rights when faced with expulsion, subject to override for "compelling reasons of national security." These rights apply, however, only to a lawfully present alien.
In short, the diplomats who negotiated the treaties, who genuinely wished to protect core rights, still had in mind, as the qualifiers suggest, a complex vision that made room for serving--indeed sometimes giving primacy tot--other objectives.
In the 1980s, however, came the start of a trend that risks losing sight of the care and nuance that marked the initial efforts to introduce human rights norms into the international law of migration. The main steps have come through ambitious judicial decisions overruling administrative immigration decisions, and they often show little recognition of the reasons why the earlier law-making steps were cautious and complex. These reasons include: deterring, detecting, and punishing fraud; limiting national security risks and preventing terrorist violence by removing non-citizens who are reasonably adjudged to plan or support such actions; and retaining the general capacity to exercise a measure of societal self-definition through immigration policy. Objectives surrounding the human rights of migrants should and must play a significant role in a nation's migration decisions. But some judicial rulings bestow an outsized conceptual momentum on such objectives and thereby obscure the legitimacy of other public policy ends.
A prime example is the jurisprudence of the European Court of Human Rights (ECtHR) applying Articles 3 and 8 of the European Convention on Human Rights (ECHR) to state party decisions that deny admission or expel a foreigner. I focus on the former provision. At its core, Article 3 stands as a firm pledge by contracting states not to torture or impose inhuman or degrading treatment or punishment. This is an absolutely central human rights pledge, and under the ECHR it is nonderogable, even in times of emergency. …