The Unsettled Status of Economic Refugees from the American and International Legal Perspectives-A Proposal for Recognition under Existing International Law

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ABSTRACT

Human migration is an ancient manifestation of human freedom that long preceded creation of the modern nation-state concept. As a result of globalization, the freedom of movement is increasingly recognized in the international legal order. A primary motivation for emigration is the disparate socioeconomic conditions between countries. Nevertheless, the legal status of economic refugees-the subclass of economic migrants who emigrate to permanently escape economic oppression-remains unsettled under both American domestic legislation and codified international law. In this Article, Professor Gabor and Mr. Rosenquest investigate the state of existing American and international law, neither of which directly addresses the status of economic refugees. The authors argue that Article 55 of the United Nations Charter and Articles 6 and 7 of the International Covenant on Economic, Social, and Cultural Rights provide a foundation for recognizing economic oppression as a form of human rights violation that could justify protection of the economic refugee by the receiving country.

I. INTRODUCTION

The global world order for the twenty-first century has been constructed upon four centuries of experience under the Westphalian sovereign nation-state concept. In the midst of globalization and the ever increasing freedom of movement for goods, services, and capital across national boundaries, the sovereign nation-state remains the basic organizing actor of international law and order. Human migration is an ancient manifestation of human freedom that long preceded the creation of the modern nation-state. Human migration can be considered as an exercise of one of the most fundamental human rightsthe freedom of movement. This Article argues that the four centuries-old concept of the sovereign nation-state should be reassessed in recognition of an internationally protected right to personal self-determination for the freedom of movement of the individual. Migration of people should be approached as an international legal process that cannot be effectively handled and solved by unilateral domestic legislation. This Article focuses on the American perspective on economic migration, with particular focus on economic refugees, in the context of contemporary international and American legal developments.

Understanding the overall problem of migration requires applying a humanistic perspective to the major causes of human migration. A recognized foundation of the present-day international legal order is that human beings who share a common cultural, linguistic, and ethnic heritage live together in recognition of their inherent right of selfdetermination. This realization is the basis for the recognition of state sovereignty. The ever-widening gap between the socioeconomic and ideological development of sovereign nation-states in the world community creates the basic source of tension. One of the most typical and widespread responses to this tension involves exercise of the fundamental human right to leave one's country of origin and move to another sovereign country for a new life. In practical terms, some conditions under which an individual lives must be intolerable in order to induce that person to leave his or her country of origin. This result arguably implies a violation of basic human rights by the country of emigration. At the same time, migration and movement to another country could exemplify an escape from oppression emanating from economic, political, and social pressures, as recognized under several major sources of public international law.

Every human being has a right to freedom of movement recognized in Articles 13 and 14 of the Universal Declaration of Human Rights' and further developed in the International Covenant on Civil and Political Rights.2 Fully understanding this right requires analysis of these provisions and their drafting history. In the midst of the devastating Second World War, there were millions of displaced persons seeking admission to countries where they could settle and find new homes. …

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