Migration, through its multifarious dimensions and the challenges it raises, has led to the development of legal instruments at national, bilateral, regional and international level. Besides, many legal acts on the rights of peoples, in general, were also adopted: though migrants were not specifically targeted, there is no doubt that they are concerned. It is the responsibility of States to protect the rights of their nationals and migrants and to take their interests into consideration in the parameters defined by international standards and principles, which are globally referred to through the expression« international migration law ».
There is a comprehensive albeit incomplete set of bilateral, regional and multilateral standards and agreements meant to regulate migrations and promote the respect of migrants’ rights. These instruments supervise, within the limits of the States’ sovereignty, the latter’s authority as regards migration management. The international standards should be envisaged here by an approach which goes beyond the simplistic discussion between the State’s authority and migrants’ rights.
Principles and standards arising from the States’ sovereignty have a direct impact on migration management: the right to the protection of borders, to the granting of nationality, to the admission and expulsion of foreigners, or again to the safeguard of national security. In the introduction of the IOM publication « Migrations and Human Rights Protection », it is explained that « We are confronted with two basic principles which should be reconciled and not systematically opposed: the first is that of national sovereignty, the second that of the protection of migrants’ rights. The terms and implications of the principle of sovereignty as regards migration are known, just as its limits are known. There has been an impressive build-up of international – universal and regional – acts which, directly or indirectly, protect migrants’ rights; the other concerns the percentage of ratification of these instruments and, especially, of the degree of implementation ».
One should look beyond the texts themselves: their effective application is a precondition for the law to fully play its role and provide responses to many challenges such as trade in human beings, freedom of movement, asylum and the situation of the internally displaced and refugees who, contrary to the former, benefit from a specific and restrictive internationally recognized legal system.
The application and observance of international standards on Human Rights, in general, and on migrants in particular, are governed by a series of control mechanisms which should also be known and implemented by national authorities. The purpose of these mechanisms is to provide the required efficiency for an effective protection of persons, regardless of their status. Moreover, the national jurisdictions should be able to apply the law in force. However, the problems of the means allocated to them and access to justice are raised. As mentioned in the introduction referred to earlier on, « The States’ obligations are not always perceived objectively or in all its aspects: we pretend to sometimes forget that an international obligation should be implemented in good faith, and not be paralyzed in its application by technical or bureaucratic obstacles ».
While there is a growing number of treaties, conventions and other instruments on Human Rights, in general, and more specifically, on migrants’ rights, the latter see their rights violated, are subject to discrimination, are exploited and even outlawed from society and are thus exposed to precarious living conditions and an uncertain legal situation. The States have the responsibility to protect migrants’ rights within the framework of international standards and principles while ensuring a methodical management of migration in the common interest of migrants and of the States themselves. Migration management begins at national level, by the preparation and adoption of a migration policy, followed by a legislation reflecting the principles of this policy and giving them a normative content; this legislation is finally implemented by administrative machinery, which, in its action, will generate migration practices.
The laws and practices deriving from it should comply with the standards prohibiting discrimination and, more generally, that which relates to Human Rights. Thus, the latter’s effect should be to guide the States in drafting their legislation on migration. In fact, migrants enjoy the fundamental rights, which the States cannot restrict. A migrant, like any other human being, is concerned by the Human Rights corpus. Developed since the middle of the 20th century, international Human Rights law is a branch of international law composed of the international legal instruments adopted by the States, both at the universal and regional level, by standards derived from customs that became crystallised as such, by general principles and specific standards sometimes made up of mandatory standards of international law or jus cogens.
Common rules, which are general in nature, universal or regional, are applied to migrants. Special rules contained in the different regimes specific to them, also apply to some categories of migrants. These « categories » are pervious and dynamic like the migratory phenomena themselves. For example, a person displaced internally following generalised violence or an armed conflict in his/her country may later cross a border, become an asylum seeker and benefit from certain conditions provided to those with refugee status. Thus, the traditional legal approach aimed at establishing categories with well-defined contours may become problematic.
Migration is often perceived as a triangular relationship between the individual, the State of origin and the hosting country. However, other « actors » like the transit country, the migrants’ networks and conveyors should be taken into consideration. While the State is the subject of international law par excellence, international law does not solely and exclusively refer to the relations between States and drifts constantly in favour of considering the individual as an active and passive subject, capable of acquiring rights and incurring obligations governed by international law.
Moreover, still in the introduction mentioned earlier, it is explained that « To date, the normative approach of migration specifically laid emphasis on the rights of the persons concerned. There are many international and regional conventions (…) [relative to migrants’ rights], but these instruments are dispersed in different branches of law (Human Rights, humanitarian law, migrant workers’ rights, refugee law). There is no convergence among them, nor is there a central source of information providing easy access to all the corresponding information and not much initiative has been launched to improve the understanding of relations between these different instruments. (…) This disparity or dispersion of standards sustains the already widespread view that there are serious gaps in the normative instruments protecting migrants and/or governing migration. Besides, the exact content or the raison d’être of these instruments are not always clearly perceived and, in this regard, there is uncertainty due to lack of information on the state of progress of their ratification and application by the States ».
In addition to the existing legal instruments, it is interesting to focus attention on the political commitments and practice of States with respect to migration both at national and international level. For reasons peculiar to them, the States often opt for texts that are non-binding but can chart the course of government actions. These include joint declarations, texts agreed during an international conference or informal agreements. Such texts are frequent in the field of migration where States, attached to their sovereignty, are reticent to the idea of adopting binding multilateral texts.
We come back to the discussion on the link, not to say the opposition between the States’ sovereignty and migrants’ rights, seen from the standpoint of the immigration issue. The latter concerns three issues that are fundamental to the State: the exercise of its sovereignty, the control of its territory, the definition of contours of the national community and thus the conditions of access to the full exercise of citizenship. The freedom of movement and the choice of one’s place of residence are considered as part of fundamental human rights. However, they come up against the recognized right of States to decide who is authorized to enter, establish or work on their territory. One of the major issues of immigration policies concerns the limits fixed by the fundamental rights to exercise the sovereignty of States. The right to family life is a good example of this. This right is guaranteed by international law, and the States cannot therefore prohibit it, except in exceptional cases. Yet, its access is limited by establishing restrictive standards, thus multiplying the risks of seeing those concerned plunge into illegality.
As stated by Claude-Valentin Marie, « the issue here is not, on the pretext of « fundamental rights », to contest the rights of States […] to control their internal or external borders, or to abolish all distinctions between regular and irregular situations or advocate the idea of total freedom to establish. This would be an error, or even worse, a mistake. On the other hand, the grounds of « security » cannot be the absolute justification of the continuous human rights violations. Even though the violation of rules organising foreigners’ entrance and stay in a country is no doubt a breach of law, it does not make the migrant a criminal or an outlaw. Once again, an effective immigration policy should focus on this permanent tension between two apparently contradictory requirements. While the State’s sovereignty in this regard cannot be contested, it does not seem either that it could be exercised without limit, except to defy the democratic nature of the State itself ».
Beyond their technical aspects, the legislations adopted by the States have an impact on the representation given to the foreigner by the State and of the societal project which underpin its actions. Ultimately, regardless of the approach adopted by the States, the law – one of the key factors regulating social and political relations – should be at the centre of decisions and practices to guarantee the respect and dignity of migrants.
In order to play its role consisting in assisting States to deal with migrations in a humane and methodical manner, IOM stepped up its commitment in the field of international migration law, by more specifically laying emphasis on the following aspects:
Compilation of international migration law;
Dissemination and assistance to understand international migration law;
Application of international migration law;
Training and capacity building;
Promotion of international migration law in the general migration management context.
 Migrations and Protection of Human Rights, International Migration Law, N° 3, 2005, p. 5. This publication is available on the page of the site dubbed « IOM Documents ».
 Extract from the intervention « Political and geopolitical stakes of international migration control », at the workshop « International Migration in West Africa: concepts, data collection a utilization, legislations », held in Dakar from 30 September to 4 October 2002. Claude-Valentin Marie was then an independent expert.