Academic journal article Texas International Law Journal

Freedom of Movement and Undocumented Migrants

Academic journal article Texas International Law Journal

Freedom of Movement and Undocumented Migrants

Article excerpt

TABLE OF CONTENTS

I. INTERNATIONAL LAW AND FREEDOM OF MOVEMENT...........174

II. DEFINING FREEDOM OF MOVEMENT FOR THE UNDOCUMENTED................175

III. FREEDOM OF MOVEMENT: THE HUMAN RIGHTS DOCTRINE..............177

A. The Right to Enter.........................177

B. The Right to Safe Passage......... 180

C. The Right to Move Freely Within the Host State.........182

D. The Right to Remain.....................183

IV. REIMAGINING FREEDOM OF MOVEMENT FOR UNDOCUMENTED MIGRANTS..............186

In our globalized world, international law increasingly facilitates freer movement of goods, services, capital, and knowledge across borders. The same cannot be said of people, for many of whom freedom of movement is still a distant goal. ' This Article asks what role international human rights law plays in enabling free movement of people, focusing on the situation of undocumented migrants. It explores three aspects of freedom of movement: The ability to move freely across borders, the ability to move freely within a country that is not one's own, and the ability to remain in such a country.

The first and last rights are found nowhere in international human rights law when it comes to undocumented migrants.2 The right to enter can be found only in the aspirational and non-binding Universal Declaration of Human Rights (UDHR), which provides a right to asylum.3 Both this right and the right to remain, conferred by the United Nations Convention Relating to the Status of Refugees (the Refugee Convention) and the United Nations Convention Against Torture (CAT), require recipients to meet a set of protection criteria in order to be eligible for asylum.4 Most undocumented migrants are unable to fulfill these requirements. They are also excluded from the right to move freely within the host country. The freedom of movement provision of international human rights law, Article 12(1) of the International Covenant on Civil and Political Rights (ICCPR), applies only to individuals lawfully within a State territory-not to the undocumented.5

This examination of treaty language and treaty-body-created soft law interpreting that language highlights the shortcomings of international human rights law with respect to undocumented migrants. Though human rights law claims to represent universal values and apply to all individuals by virtue of their humanity,6 undocumented migrants are left out on both counts.7 This examination of the right to freedom of movement exemplifies the ways in which the story that international human rights law tells about itself is deeply flawed.

I. International Law and Freedom of Movement

The contemporary era is characterized by global movement of people-massive flows of migrants heading from economically impoverished and politically troubled States to more stable and wealthier destinations.8 The direction of these mass movements is often from the Global South to the Global North, but South-South movements are increasingly frequent.9 These migrant movements are the subject of regular media headlines, including Central American migrants amassing at the southern border of the United States, Syrian migrants undertaking risky boat journeys across the Mediterranean, and Rohingya migrants fleeing Myanmar in an attempt to reach Australia by sea.10

But where is the law in these scenarios? International law has little to say about the movement of people across borders. If the central function of international law is cooperation, or even simply coordination, among States," international migration is a phenomenon in search of a legal regime.12 It is movement without freedom of movement; in the absence of a governing international legal framework, the vast majority of migrants, upon leaving their home States, are situated outside of the law. This liminal status entails substantial vulnerabilities and fertile grounds for exploitation.'*

The free movement of people across borders might have been incorporated into any one of a number of international legal regimes. …

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