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Promoting the Recognition

and Protection of the Rights of


All Migrants Using a Soft-Law
International Migrants Bill of
Rights
Ian M. Kysel1
University of Oxford

Executive Summary
The rights and movement of people crossing international borders remain
inadequately governed and incompletely protected by a fragmented
patchwork of institutions and norms. In recent years, debates regarding
migration law and practice globally have been focused on subcategories of
migrants, such as refugees, or on particular migration contexts, such as
migration as a result of crisis or climate change. In response, a transnational
initiative housed at the Georgetown University Law Center has drafted a
soft-law bill of rights the International Migrants Bill of Rights (IMBR)
that seeks to elaborate the law protecting all migrants, regardless of the
cause of their movement across an international border. The bill draws its
content from human rights, refugee, and labor law, among other areas, and
is drafted to be a comprehensive and declarative tool that articulates a core
set of rights to protect migrants and to apply in the migration context.

This article articulates how such a tool could be used to promote the
recognition and protection of the rights of all migrants, in law and in practice.
It argues that a soft-law bill of rights could be leveraged to fill significant
gaps and promote an improved normative and institutional infrastructure
that better protects all migrants worldwide. Section I provides a brief
overview of the gap that a soft-law bill of rights can address. Section II
provides a brief overview of the history and content of the bill of rights and
IMBR Initiative. Section III describes, specifically, how making use of a
soft-law bill of rights stands to improve the recognition and protection of
fundamental rights that protect all migrants and how soft law can help
fill specific protection gaps.

1Associate Member, Nuffield College, University of Oxford. The author would like to thank Justin Gest,
Elizabeth Gibson, Bianca Santos, Melissa Stewart, and Sanjula Weerasinghe for their contribution to the
development of the ideas presented in this article. All views, and any errors or omissions, are the authors
alone, and do not necessarily represent those of the International Migrants Bill of Rights Initiative.

2016 by the Center for Migration Studies of New York. All rights reserved.

JMHS Volume 4 Number 2 (2016): 29-44


Journal on Migration and Human Security

I. Introduction: The Problem and Gap Regarding the


Protection of Migrants Rights
The migration of human beings whether pulled by a search for new opportunities or
reunification with family, pushed by persecution or other adversity, or both pushed and
pulled by a combination of factors is older than the organization of political communities
into nation-states or the development and elaboration of legal norms protecting individual
rights.2 The United Nations (UN) Population Division recently estimated that more than
230 million people worldwide are migrants (UNDESA 2013);3 the UN High Commissioner
for Refugees (UNHCR) estimated that at the close of 2014 there were more than 20
million refugees and asylum seekers worldwide.4 There is a growing consensus that human
migration trends are and will remain mixed with flows of labor, family, forced, and other
categories of migrants intermingled (see, e.g., Migration Observatory 2011 and UNHCR
2007)5 and that climate change, the evolving nature of conflict, and other crises have
and will continue to produce migrants who move as a result of causes that may not be
recognized by existing legal categorizations.6

Furthermore, responsibility for international migration management is diffused across the


international system. There is no international organization with a mandate to facilitate
or manage international migration flows, nor is there an organization with a mandate to

2 See, e.g., Crpeau (2015): Migration is the DNA of mankind. We all come from the Rift Valley in Africa
some 200,000 years ago, and we have conquered the world ten times over since then.
3 The UN estimate refers to the international migrant stock, which is defined as a mid-year estimate of
the number of people living in a country or area other than the one in which they were born or, in the absence
of such data, the number of people of foreign citizenship (UNDESA 2013, 1, 4). For the purposes of this
article, a migrant is defined using the IMBRs definition: a person who is outside of a State of which the
migrant is a citizen or national, or, in the case of a stateless migrant, the migrants State of birth or habitual
residence (IMBR 2013b, 33). See also OHCHR (2014, 4), incorporating the IMBR definition of migrant.
4 UNHCR estimated that there were 19.5 million refugees and 1.8 million asylum seekers, of whom 13.9
million were newly displaced in 2014; UNHCR also estimated that more than 38 million people were displaced
internally (i.e., within their state) for a total of nearly 60 million forced migrants worldwide (UNHCR 2015a,
para. 4; UNHCR 2015b). Although internally displaced persons may be forced migrants, they are not properly
considered to be international migrants as they are still within their country of citizenship (see UNOCHA
2004, 1, para. 2). Furthermore, UNHCR estimates that at least 10 million people worldwide are stateless,
and live without any nationality (UNHCR 2014, 4). Of course, many without an effective nationality remain
within their country of birth or habitual residence, and therefore are also not properly considered international
migrants (although they may be internally displaced), while others without an effective nationality who
have left their country of birth or habitual residence are indeed international migrants and, depending on the
reason for their flight, may also be refugees. The distinction between the rights of all persons who are within
their country of birth, citizenship, or habitual residence and the rights of all persons who are outside of such
country and thus without a tie of birth, citizenship, or habitual residence to any state in whose jurisdiction
or effective control they might fall is the core focus of the work of the IMBR Initiative. A full analysis of
the boundaries and complexities of these definitional matters is generally beyond the scope of this article. For
more on these definitional issues, see IMBR (2013b, 33).
5 For comprehensive and illustrative research on trends in migration flows in the Horn of Africa, see the
work of the Regional Mixed Migration Secretariat (RMMS 2015).
6 One example of migration that falls outside of existing refugee protection regimes is the concept of
survival migration, that is, movement of migrants who are outside of their country of origin because of
an existential threat to which they have had no access to a domestic remedy or resolution (Betts 2010, 539).
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International Migrants Bill of Rights

protect the human rights of all international migrants (see, e.g., Martin 2014, 1-2).7 As the
UN Office of the High Commissioner for Human Rights, which has a general mandate to
promote and protect human rights worldwide, has stated with respect to rights: As with
other issues of a cross-cutting nature, there is no single organization in the international
system that has the mandate to provide overall normative oversight and leadership in the
protection of migrants rights (OHCHR 2013, 33).8

Likewise, from a normative perspective, the rights of all migrants receive comprehensive
elaboration and thus protection only indirectly by application of general human rights
treaties (which recognize that all human beings have rights) or by virtue of treaties
which protect sub-groups of migrants, such as refugees or migrant laborers (see OHCHR
2013, 15-16).9 Taken together, this patchwork arguably forms a robust set of protections.
Unfortunately, many of these protections are honored as much in the breach, as they are
upheld in the practice of states.10 In addition, the human rights treaty which would arguably
protect the most migrants the International Convention on the Protection of the Rights
of All Migrant Workers and their Families suffers from a very low rate of ratification.11
In short, there simply is no single international instrument that clearly and explicitly
enshrines the protection of a core baseline of rights (and corresponding set of minimum
state obligations) and applies to all migrants, regardless of the cause of their migration.

Against this complicated background of evolving practice and new challenges, of


diffuse or incomplete institutional mandates, and of inadequate normative clarity a
transnational network of scholars, practitioners, other experts and students has developed

7 There are, of course, many international and intergovernmental organizations with important and relevant
mandates regarding international migrants and sub-groups of migrants. For a review of many of the most
important of these groups and a summary of their mandates, see the work of the Global Migration Group
(GMG 2015; see also GMG Terms of Reference)
8 The UN special rapporteur on the human rights of migrants, an independent expert, does have a broad
mandate with respect to all migrants (see OHCHR 2016).
9 OHCHR (2013) lists more than 30 instruments that apply to the protection of the rights of international
migrants. For a detailed exposition of this theme, see also Chetail (2013).
10 As the UN high commissioner for human rights has remarked: [E]ven with a clear view of the rights
that migrant workers enjoy under international law, we face enormous challenges in our drive to make sure
that migrants and their families fully enjoy their human rights during their journeys, and in schools and
workplaces across the globe. The rights of migrant workers are frequently, indeed routinely, violated. They
work in dangerous or harmful conditions, with high incidences of injury, death and sickness; receive wages
far under the minimum baseline; and are subjected to fraudulent practices, excessive working hours and even
illegal confinement by their employers, as well as sexual harassment, threats and intimidation. Their families
are also vulnerable to human rights abuses in other contexts. These abuses of migrants are intensified when
their immigration status is irregular. Not only are they often denied even the most basic labour protections,
personal security, due process guarantees, healthcare and, in the case of their children, education; they may
also face abuses at international borders, including prolonged detention or ill-treatment. And in some cases
they risk being trafficked, enslaved, sexually assaulted or murdered (Hussein 2015).
11 As of this writing, 48 states have ratified the convention (UN 2016b). None of the 10 UN member states
with the largest numbers of migrants in 1990, 2000, and 2013 (the United States, the Russian Federation,
Germany, Saudi Arabia, the United Arab Emirates, the United Kingdom, France, Canada, Australia, and
Spain) are states parties according to the UN Population Division (UNDESA 2013). Likewise, none of the 10
countries with the greatest number of migrants as a percentage of their total populations in 2013 (the United
Arab Emirates, Qatar, Monaco, Kuwait, Andorra, Bahrain, Brunei Darussalam, Luxembourg, Singapore, and
Jordan) are states parties (comparison based on data from UNDESA 2016).
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Journal on Migration and Human Security

the International Migrants Bill of Rights (IMBR), a single declarative articulation of


the rights protecting all migrants under international law, regardless of the cause of their
migration. More recently, this network has launched an initiative to use the IMBR, along
with a set of companion tools, to promote the recognition and protection of this uniform set
of rights protecting all migrants.12

The remainder of this article will provide an account of the potential of this work to make
a difference in the lives of migrants. In particular, Section II will provide a brief overview
of the drafting of the IMBR and its normative content. Section III will argue that a soft-law
framework that restates the uniform baseline of rights protecting all migrants can be used
effectively to promote the recognition and protection of the rights of migrants in law and
in practice. The strategic vision that this article proposes is that a declarative bill of rights
for all migrants that is drawn from and reflects existing law can, in the long run, promote
increased compliance and coherence in the fragmented space of international migration
law and governance. This article argues that this can be done through using the soft-law
IMBR opportunistically to promote rights in law and policy processes at the international,
regional, national, and local levels and through using the IMBR to advocate (at all levels)
for interpreting existing law in a manner that reflects the international law baseline. Section
IV provides a brief summary and conclusion.

II. An Overview of the International Migrants Bill of


Rights (IMBR)
The IMBR is a soft-law framework that was drafted by a network of students and scholars.
It codifies existing international law through a declarative set of principles, 23 legal
articles (the bill of rights itself), and detailed legal commentaries. It contains a number
of innovations, including positing a legal definition of international migrant while both
affirming the legal regime protecting specific categories of migrants (such as refugees
and other forced migrants), and framing the rights and needs of vulnerable migrants. In
short, it does what no existing legal instrument has done: clearly and unequivocally affirm
that migrants benefit from a broad baseline of rights protections under international law,
regardless of the cause of their migration.

The IMBR originated as a student-directed project in a seminar taught by then-Professor and


Dean T. Alexander Aleinikoff at Georgetown University Law Center in 2008. A partnership
with American University in Cairo and Hebrew University in Jerusalem followed, and
resulted in the publication of a comprehensive draft of an international bill of rights in
2010.13 With the support and partnership of the Georgetown University Law Center,

12 These tools include a set of principles which reflect the core rights of all migrants, a bill of rights that
clarifies the specific legal content of these principles in the context of international migration, a set of
detailed legal commentaries that traces the evolution of these norms to a range of international instruments,
a handbook that explains how to use the principles and bill of rights to promote recognition and protection of
the rights of all migrants, and a set of research indicators that can be used to evaluate state law and regulations
against this framework. These tools are all available online at www.imbr.info.
13 For a detailed history of the early work of the IMBR Initiative, see Follick (2010).
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International Migrants Bill of Rights

Hebrew University in Jerusalem, the London School of Economics, and the Open Society
Foundations, among others, the IMBR Initiative then held consultations regarding the draft
with members of civil society, including migrants, academic experts, legal practitioners,
and representatives of international and intergovernmental organizations in Boston, Dakar,
Geneva, London, New York, and Washington, DC. It then published a complete revision
of the bill of rights and commentaries in 2013 alongside a handbook and a set of draft
indicators for evaluating national law against the IMBR standard (IMBR 2013a).14

The IMBR is built on a set of principles that are a simple declarative articulation of
core human rights. The wording is, as much as possible, adapted from the Universal
Declaration of Human Rights, International Covenant on Civil and Political Rights, and/
or the International Covenant on Economic, Social, and Cultural Rights, but is framed to
emphasize migrants as rights-holders. The principles are:

Every migrant has the right todignity, including physical, mental, and moral
integrity.
Every migrant has the right, without any discrimination, to theequal protectionof
the law of any State in which the migrant is present.
Vulnerable migrants, including children, women, and disabled migrants, have the
right to the protection and assistance required by their condition and status and to
treatment which takes into account their special needs.
Every migrant has the inherent right tolife.
Every migrant has the right toliberty and security of person.
Every migrant has the right to recognition everywhere as aperson before the law.
Every migrant has the right to an effectiveremedy.
Every migrant has the right todue processof law.
Every migrantvictim of crimehas the right to assistance and protection, including
access to compensation and restitution.
Every migrant has the right to protection against discriminatory or
arbitraryexpulsionor deportation, including collective expulsion.
Every migrant has the right to seek and to enjoy in other countriesasylum.
Every migrant has the rightagainst refoulement.
Every migrant has the right to anationality.
Every migrantfamilyhas the right to protection by society and the State.
Every migrant has the right tofreedom of thought, conscience, and religion or
belief.
Every migrant has the right tofreedom of opinion and expression.
Every migrant has the right tofreedom of peaceful assembly and association.
Every migrant has the right to participate in thecivil and political lifeof the
migrants community and in the conduct of public affairs.
Every migrant has the right to befree from slavery, servitude, or forced or
compulsory labor.
Every migrant has the right toworkand to just and favorable conditions of work.
Every migrant has the right to the highest attainable standard of physical and

14 The bill of rights, handbook, and draft indicators can be found at www.imbr.info. For a discussion of the
use of indicators to evaluate migrants rights and migration policy, see Wong and Gest (2013).
33
Journal on Migration and Human Security

mentalhealth.
Every migrant has the right to anadequate standard of living.
Every migrant has the right toeducation.
Every migrant has the right to enjoy the migrants ownculturesand to use the
migrants own languages, either individually or in community with others, and in
public or private.
(IMBR 2013a, 12; bold in original)

From the perspective of the core international human rights treaties, these principles
form an uncontroversial baseline. Admittedly, however, not all of these rights are equally
uncontroversial in practice. The right to work, for example, is provided for in, among other
instruments, the Universal Declaration of Human Rights and the International Covenant
on Economic, Social, and Cultural Rights (ICESCR), while the 1951 Refugee Convention
limits its protection to a guarantee of parity with nationals for only those refugees lawfully
staying in a given state.15

Following from these principles, in 23 articles, the IMBR articulates the key normative
implications of these rights in the context of international migration. Again, the wording
of the bills articles is adapted from existing international law and in particular the core
UN human rights treaties, relevant ILO conventions, the 1951 Refugee Convention and its
1967 Protocol, as well as crime control and anti-trafficking agreements. Where provisions
correspond to a broad international consensus regarding the rights of migrants, the state
obligation is marked with a shall. Where the provisions are adapted from regional law
or progressive state practice, a should is employed. A detailed account of the sourcing of
the wording and content of these rights can be found in a lengthy set of legal commentaries
which accompany the bill (IMBR 2013b).

The goal in making these elections was to emphasize the IMBRs stance on the international
law protecting the rights of all migrants. Much of the normative framework protecting
migrants rights is already contained in core human rights treaties, although states parties
do not always acknowledge this fact in word or deed. By affirming the rights of all migrants
through consistent use of treaty language, the IMBR Initiative has created a tool to enable
states, international and intergovernmental organizations, and civil society alike to push
for the recognition and protection of these core rights. By further addressing areas where
consensus has not yet crystalized, the Initiative has sought to identify key areas of practice

15 Universal Declaration of Human Rights (10 Dec. 1948), U.N.G.A. Res. 217 A (III) (1948), Art. 23;
International Covenant on Economic, Social, and Cultural Rights (New York, 16 Dec. 1966) 993 U.N.T.S.
3, entered into force 3 Jan. 1976, Art. 6; Convention relating to the Status of Refugees (Geneva, 28 July
1951) 189 U.N.T.S. 137, entered into force 22 April 1954, Art. 24. A fulsome treatment of migrants right
to work under international law is beyond the scope of this essay. However, there is some debate regarding
whether Article 2(3) of the ICESCR permits developing countries to limit the application of the right to work
insofar as it can be considered an economic right rather than a social right to non-nationals at all. It is
also outside of the scope of this article to address any lingering controversy in the international human rights
field between the status of civil and political rights and economic, social, and cultural rights (or doctrinal
arguments about whether rights like the right to education or the highest attainable standard of physical and
mental health, for example, are rights that apply to all humans, including migrants). For a brief discussion of
this controversy see, e.g., Roth (2004, 64).
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International Migrants Bill of Rights

where law is emerging and could be developed further. Accordingly, the IMBR both affirms
the existing rights framework applicable to all migrants and serves as a tool for promoting
progressive development of law and state practice.

An indicative example of the structure (and potential usefulness) of the IMBR is its
treatment of the right against refoulement in its Article 13. This right is recognized in
international and regional human rights law and is the cornerstone of the international
refugee law regime. These bodies of law provide slightly different standards, which lead
to the differences that can be observed within the IMBRs Article 13(1)-(4). The IMBR
also recognizes the jurisprudential innovations that have driven the doctrines expansion
in regional state practice, as is reflected in Article 13(5)s coverage of serious deprivations
of human rights:

1. Every migrant has the right against refoulement.


2. No migrant shall be expelled or returned in any manner to another State where there
are substantial grounds for believing that the migrant would be subjected to torture
or cruel, inhuman or degrading treatment or punishment.
3. No migrant shall be expelled or returned in any manner to the frontiers of territories
where the migrants life or freedom would be threatened on account of race, religion,
nationality, membership of a particular social group, or political opinion.
4. No migrant shall be expelled or returned in any manner to another State where
there are substantial grounds for believing that the migrant would be subjected to a
serious deprivation of fundamental human rights.
5. No migrant should be expelled or returned in any manner to another State where
there are substantial grounds for believing that the migrant would be subjected to
other serious deprivations of human rights.
6. States shall respect the non-refoulement rights of all migrants within their effective
control, whether or not they are within the States territory.
(IMBR 2013a, 18-19)

This article, like the other articles that make up the IMBR, starts from a core principle,
gathers useful normative content in two layers of articles (one mandatory, employing
shall; one hortatory, employing should), and rests on a broad base of detailed legal
commentaries tracing the legal content to law and practice.16

Beyond simply compiling the existing rights of all migrants in one place (arguably the
IMBRs primary contribution), the drafting of the IMBR reflects a number of noteworthy
innovations worth further consideration. First, the IMBR includes a savings clause in its
preamble that emphasizes that in cases in which a higher standard of international law applies
to certain groups of migrants, the higher standard shall prevail.17 This is vitally important,
given that groups of migrants such as refugees are protected by specific bodies of law

16 A detailed legal commentary regarding the right to non-refoulement can be found in IMBR (2013b, 70-
74).
17 AFFIRMING that nothing in this Bill shall be interpreted as restricting, modifying, or impairing the
provisions of any international human rights or international humanitarian law instrument or rights granted
to persons under domestic law (IMBR 2013a, 14).
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Journal on Migration and Human Security

that provide a higher standard of protection. Relatedly, the IMBR emphasizes that the core
international norm of equal protection, and its accompanying right against discrimination,
are to be interpreted to impose an obligation on states in respect of proportional and rights-
respecting distinctions in the treatment of migrants (IMBR 2013a, 15).18 This approach
helps clarify how differences in treatment for example, between migrants (whether
regular or irregular) who are long-time residents of a host state community and
temporary migrants, such as tourists, are permissible under an international law regime that
guarantees a minimum baseline of rights protections. In short, that not every distinction is
discriminatory must not be a barrier to the protection of fundamental rights.

Another key innovation is an emphasis on collecting rights which are applicable to regular
and irregular migrants and generally discarding migration status as a driver of or obstacle
to the applicability of a baseline of rights protections. Of course, international law and
state practice distinguish between the rights of migrants on the basis of lawful status.19 But
these distinctions do not prevent the articulation of a baseline of rights that apply to all
migrants, as the IMBR seeks to do. Thus the IMBR utilizes a single and simple definition
of migrants, a significant contribution to the development of international law:

1. The term migrant in this Bill refers to a person who is outside of a State of
which the migrant is a citizen or national, or, in the case of a stateless migrant, the
migrants State of birth or habitual residence.
2. The present Bill shall apply during the entire migration process of migrants.20
(IMBR 2013a, 14)

The IMBRs simple legal definition of migrant has already proved useful in the field, as
it was incorporated, following informal consultation with the IMBR Initiative, by the UN
Office of the High Commissioner for Human Rights (OHCHR) Recommended Principles
and Guidelines on Human Rights at International Borders (OHCHR 2014, 4n2). Similarly,
the IMBR recognizes that the rights of migrants apply during the entire migration process
emphasizing that the rights of migrants must be protected by all states, including
countries of transit and destination.

Finally, the IMBR seeks to emphasize that the rights of specific groups of migrants can
derive both from their special status under international law as well as their vulnerability. In
particular, the IMBR recognizes the rights of child migrants, migrant women, and migrants
with disabilities:

1. Every vulnerable migrant has the right to protection and assistance required by

18 A detailed legal commentary regarding the IMBRs equal protection guarantee can be found in IMBR
(2013b, 40-46).
19 See, e.g., International Covenant on Civil and Political Rights (New York, 16 Dec. 1966) 999 U.N.T.S.
171 and 1057 U.N.T.S. 407, entered into force 23 Mar. 1976 [the provisions of article 41 (Human Rights
Committee) entered into force 28 Mar. 1979], Art. 12-13. International law also recognizes that certain
protections can be withheld from non-nationals (see ICESCR, ibid., Art. 2[3]).
20 A detailed legal commentary regarding the IMBRs definition of migrant can be found in IMBR (2013b,
33-38).

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International Migrants Bill of Rights

the migrants condition and status and to treatment which takes into account the
migrants special needs.
2. In all actions concerning child migrants, the best interests of the child shall be
a primary consideration. States shall undertake to ensure the child migrant such
protection and care as is necessary for the childs well-being, and assure to the child
migrant who is capable of forming the childs own views the right to express those
views freely in all matters affecting the child, the views of the child being given due
weight in accordance with the age and maturity of the child.
3. States shall take in all fields all appropriate measures to ensure the full development
and advancement of women migrants for the purposes of guaranteeing them the
exercise and enjoyment of human rights and fundamental freedoms on the basis of
equality with men, including the provision of special protection during pregnancy.
4. States shall undertake to ensure and promote the full realization of all human rights
and fundamental freedoms for all migrants with disabilities without discrimination
of any kind on the basis of disability, including through taking appropriate measures
to enable migrants with disabilities to live independently and participate fully in all
aspects of life.
(IMBR 2013a, 15)

Migration can create or exacerbate vulnerabilities as a matter of fact. Recognizing related


rights protections as a matter of law and enforcing those rights in practice is thus
an important priority with significant potential consequences for the lives of migrants
generally and vulnerable migrants in particular.

III. A Strategic Vision for Promoting the Recognition and


Protection of the Rights of All Migrants
The IMBR, given its content and the approach taken by the drafters to use the bill as
an opportunity to reiterate existing law as it applies to migrants, could be a useful tool
for promoting the recognition and protection of current law. The IMBR Initiative already
uses the bill and the other resources it has developed to pursue advocacy, education,
and research, with the goal of clarifying and promoting state compliance with the law
protecting all migrants.21 Indeed, a migrants bill of rights that is declarative of existing
law (and open to progressive development) could be a useful tool for states, international
and intergovernmental organizations, and members of civil society, including migrants, to
ensure that laws, policies, and practices reflect this baseline.

As the special representative of the UN secretary-general for international migration and


development, Sir Peter Sutherland, has said of the IMBR:

The IMBR is a politically viable tool that could address the fundamental gap
between todays rhetoric about human rights and the frequent failure to protect
rights in practice. It could aid advocates in primarily two ways: by presenting in
21 For more information about the mission and work of the IMBR Initiative, see www.imbr.info. Note that
the author is a long-time volunteer with the initiative and co-chairs its Steering Committee.
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Journal on Migration and Human Security

compelling fashion the evidence that states already have obligations to migrants
under international law, and by providing a set of indicators and benchmarks against
which to measure the performance of states in fulfilling these obligations.
(Sutherland 2013, 270)

This formulation highlights the utility of a declarative restatement of migrants rights as a


tool for encouraging compliance with existing norms. It also emphasizes the usefulness of
referring to the IMBR as soft law, although that term has most commonly been used to
describe normative commitments by states which lack some of the features of hard law
(obligation, precision, and delegation).22 While the IMBR was not drafted by states,23 its
characterization as soft law reflects its correspondence to existing hard law which already
binds states.24

There are a number of legal and policy processes or discussions currently underway at the
international and regional levels in which use or affirmation of the IMBR as a soft-law
rights baseline could help promote outcomes that are more rights-respecting. Similarly,
the IMBR could be a useful tool for promoting national and local recognition of a
uniform set of migrants rights, and for ensuring compliance with those rights in practice.

At the international level, there are two ongoing processes that could create opportunities to
recognize and affirm the rights of all migrants: the United Nations Summit on Addressing
Large Movements of Refugees and Migrants and the work of the state-led Migrants in
Countries in Crisis (MICIC) Initiative.

In September 2016, the United Nations will convene a major summit on migration on the
sidelines of the UN General Assembly. It is expected that, among other things, this summit
will consider and propose priorities for future work of the United Nations with respect
to migration and refugee issues. In preparation for the summit, the UN secretary-general
issued a report on April 21, 2016 (UN Secretary-General 2016); the drafting of the report
was overseen by Karen AbuZayd, the special adviser on the summit (UN 2016a; see also
Wadlow 2016).

Reference to and incorporation of the IMBR as a way of affirming the rights that apply
to all migrants in the context of this report and summit would be one way to anchor any
practical or governance outcomes in existing international law. For example, one outcome
of the summit may well be the recommendation that the International Organization for
Migration (IOM) become a UN agency. Indeed, the secretary-generals report specifically
calls upon member states [t]o forge a closer relationship between the United Nations
and the International Organization for Migration, including through a strengthened legal
22 Much valuable scholarship considers the nature of law in the international system in great depth. For a
seminal framing of soft law (and the conception that [t]he realm of soft law begins once legal arrangements
are weakened along one or more of the dimensions of obligations, precision, and delegation), see Abbot and
Snidal (2000).
23 For a literature review of the scholarship of networks in international relations, including scholarship
related to the role of civil society in promoting the mechanisms that constrain and regulate state behavior, see
Slaughter and Zaring (2006, 214).
24 For one account of norm emergence considering the IMBR in particular, see Gest et al. (2013).
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International Migrants Bill of Rights

relationship (UN Secretary-General 2016, para. 106c).25 Should a closer legal relationship
in fact occur, the IMBR could help to ensure both that IOM has a rights-based governance
framework and also that this framework directly recognizes and incorporates international
law (including law which forms the basis of the mandates of other organizations, such
as UNHCR and the International Labor Organization).26 Another potential outcome of
the summit and one also contemplated by the secretary-generals recent report (UN
Secretary-General 2016, Art. 93-94, Art. 106ab) might be proposed additions to the
refugee protection regime to expand its coverage to new forms of forced and vulnerable
migrants. Given the lack of a single legal document codifying the rights of all migrants
generally, however, similar proposals outside of the forced migration context cannot be
assimilated easily into a single legal regime. The IMBR could be a starting point and vehicle
for this discussion. Its article on the rights of vulnerable migrants is one place to start.

In recent years, there have been calls for states to better respond to situations of migrants
caught in countries in crisis. In this context, a small working group of states that includes
the Philippines, the United States, Australia, Bangladesh, Costa Rica, Ethiopia, and the
European Commission, has launched an initiative (the previously mentioned Migrants in
Countries in Crisis Initiative, or MICIC) with a mandate to develop a set of principles and
guidelines along with a set of effective practices to inform the role and responsibilities
of states and other stakeholders to prepare for, respond to, and address crises (including
natural disasters and conflicts or civil unrest) before, during, and after an emergency
(MICIC 2016; see also MICIC 2014). Inclusion of the IMBR and affirming that ensuring
protection of the rights of all migrants in ordinary times is essential to safeguarding those
rights during crisis would similarly be a useful way for the MICIC Initiative to ground
its work in and help promote compliance with existing law.

At the regional level, the IMBR could be useful to ensure that the law and practice of
regional human rights and other bodies are reflective of existing regional law and consistent
with international norms. Regional bodies may be particularly well-placed to promote
advances in law and practice protecting migrants rights. For example, in the Americas
region, the Organization of American States (OAS) and its Inter-American Commission
on Human Rights (IACHR) and Inter-American Court of Human Rights could make use
of the IMBR as a way to ensure that the interpretation of regional human rights norms
is consistent with internationally recognized norms. Thus the OAS could incorporate the
IMBR into the regularly renewed resolution of its General Assembly on the human rights
of migrants (see, e.g., OAS 2013). The IACHR could incorporate the IMBR into thematic
hearings and reports on issues related to the protection of the rights of all migrants.27 Its
thematic rapporteurship on the rights of migrants (OAS 2016) could issue a set of regional
guidelines for the protection of the rights of all migrants a document which could
incorporate the provisions of the IMBR and reflect the concordance between international
and regional law. Such progress crystalizing the rights of migrants in the Americas could
25 See also UN Secretary-General (2016, Art. 98): it is time to strengthen the legal relationship between the
United Nations and the International Organization for Migration.
26 For one such proposal, discussing the IMBR, see Martin (2014, 151, 282).
27 The IMBR Initiative has made a submission proposing the incorporation of the IMBR in the context of
IACHRs work on the detention of migrants (see IMBR 2014).
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Journal on Migration and Human Security

inspire similar efforts, such as by the African Commission on Human and Peoples Rights.
Such articulations could promote the development of state practice consistent with the
legal regime protecting migrants worldwide.

At the national level, the IMBR can be used by states to craft migration law and policy that
is respective of the rights of all migrants. At the local level, the IMBR can be similarly used
by cities and municipalities to identify avenues for safeguarding rights.28 Furthermore,
advocates can use the IMBR as the basis for amicus or other submissions to ensure that
court decisions on cases involving migrants reflect and comply with international norms.
These efforts could be particularly fruitful with respect to states that have signed and ratified
core international agreements from which the IMBRs provisions are drawn, though this
is not required. The IMBR is a useful tool for promoting rights protections both separately
and in coordination with efforts to promote compliance with states treaty commitments.
To the extent that global and regional efforts to address migration incorporate the IMBR, in
whole or in part, further coordinated effort by states, international and intergovernmental
organizations, civil society, and migrants could promote state law and practice that reflects
the baseline of rights which protect all international migrants.

IV. Conclusion
The IMBR responds to gaps in law and most importantly, gaps in compliance in
the increasingly complex realities of global migration practice. Against the background
of a normative and institutional patchwork that incompletely regulates migration and
inadequately protects migrants, the IMBR seeks to affirm and restate how existing
international law protects the rights of migrants. This soft-law declaration is drawn from
international human rights law, refugee law, and labor law, as well as regional law and
progressive developments in the practice of states. As such, affirmation and incorporation
of the IMBR at the international, regional, and national levels stand to promote the
recognition and protection of this law. Compliance with this law would go a long way to
improving the lived experience of migrants.

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