Introduction
Migration, understood as the movement of people across boundaries, has been a defining feature of human history. It is governed by a complex international legal framework that includes the Universal Declaration of Human Rights,1 the 1951 Convention relating to the Status of Refugees,2 the International Covenant on Civil and Political Rights,3 and the International Covenant on Economic, Social and Cultural Rights.4 National laws play an important role in migration management by providing for border controls, immigration rules, asylum and refugee protection, and the principle of non-refoulement.
Global migration has increased rapidly in recent decades as a consequence of globalisation, political instability, and climate change, generating difficulties such as the refugee crisis, irregular migration, and the economic effects of skilled migration. States bear a dual obligation: to protect national security and to safeguard migrants’ rights. Security measures include background checks, visa requirements, and rules directed against terrorism, human trafficking, and organised crime.
International organisations such as the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM), and the International Labour Organization (ILO) perform critical roles in the governance of global migration. Their cooperation is essential to ensure orderly and humane migration and to support the rights of migrant workers against exploitation and discrimination.
Migration and its legislation: an outline
The relationship between migration and law involves a complex interaction between international legal frameworks and domestic rules designed to safeguard the rights of migrants. This paper analyses the global and national safeguards afforded to migrants, with emphasis on the applicable legal frameworks, the obstacles to their realisation, and emerging practices in the field.
A. Global legal framework: major instruments
International migration law offers a comprehensive account of the rules governing the transnational movement of individuals. It encompasses conventional, customary, and soft-law norms pertaining to matters such as irregular migration, human trafficking, and refugee protection.5
The Global Compact for Safe, Orderly and Regular Migration, adopted by United Nations Member States in 2018, is a non-binding agreement that sets out twenty-three objectives for the comprehensive management of international migration. It underscores national sovereignty, human rights, and the equitable sharing of responsibility among States.6
International human rights law affirms that all persons, including migrants, enjoy inherent human rights. Instruments such as the Universal Declaration of Human Rights impose duties on States to respect and safeguard these rights.7
B. Deficiencies in protection
Notwithstanding the existence of comprehensive international frameworks, significant gaps in implementation persist. Many migrants endure ill-treatment, insufficient access to legal recourse, and substandard living conditions. National legislation frequently lacks adequate procedural safeguards for asylum seekers or for those facing deportation.
C. Legal protections at the national level
Refugee status: The 1951 Refugee Convention sets out the rights of refugees and the obligations of States, including the duty not to return refugees to territories where their life or freedom would be threatened.8
Rights of migrant workers: Several treaties address the rights of foreign workers, although their implementation varies significantly across States. The principal instrument in this field is the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.9
D. Concerns in implementation
Disparities in national laws: States differ in their commitment to international standards, with the result that refugees are not always afforded equivalent protection.
Political climate: The attitudes of policymakers towards immigration frequently shape national policy, potentially producing restrictive measures that adversely affect the rights of migrants.
The intersection of migration and law reveals a landscape of both well-established rights and substantial challenges. International standards establish the framework for migrants’ rights, but national implementation often falls short owing to gaps in the law and political opposition. Sustained effort is required to close these gaps and to ensure global respect for the rights of refugees.
International and national law: differences and the scope of protection of migrants
A. International law
International human rights law applies to all persons, including migrants, irrespective of their status. It encompasses protections against arbitrary detention, torture, and mass expulsion.10
International treaties protect the rights of various categories of migrants, including refugees under the 1951 Refugee Convention, migrant workers under the 1990 Migrant Workers Convention, and victims of trafficking. These instruments establish the basic standards of treatment and protection.
B. National law
Variable application: The recognition and implementation of migrants’ rights may differ significantly across national legislation. Some States implement extensive safeguards consistent with international norms, while others enact stringent measures that curtail migrants’ rights on grounds of national security or public order.
Discretionary powers: States possess extensive powers over immigration, including the authority to refuse entry to or to deport non-nationals. This frequently results in insufficient procedural safeguards for those unlawfully present, in contrast to the more comprehensive rights recognised under international law.
C. Implementation mechanisms
Binding obligations: States that ratify international treaties assume a legal obligation to give effect to their provisions. Enforcement, however, frequently depends on the willingness of governments to comply, given the limited channels for accountability at the international level.
Customary international law: Certain principles, such as non-refoulement, the duty to refrain from returning refugees to places where they face a real risk of harm, have crystallised into customary international law and bind even States that have not ratified the relevant treaties.11
D. National legislation and its limits
Local jurisdiction: National legislation governs the incorporation of international obligations into the domestic legal order. Disparities may arise where domestic law does not fully conform to international norms.
Judicial frameworks: The judicial framework and the prevailing political climate concerning immigration may constrain the remedies available to migrants under national law. In certain instances, national courts may decline to prioritise or acknowledge international legal principles.
E. Rights secured under international law
International norms guarantee migrants’ rights, including the right to seek asylum, protection from discrimination, and access to essential services such as healthcare and education.
Accountability: Under international human rights law, States must protect migrants against abuse by third parties and provide appropriate remedies for violations.
F. Rights under national law
Limited rights: Migrants’ rights under national law may be narrower than those recognised internationally. Some States, for example, may decline to recognise the right to asylum or may impose penalties for irregular entry.
Inconsistent protection: Levels of protection vary according to nationality, legal status, and local policies on immigration and integration.
In sum, while international law seeks to provide a universal foundation for the protection of migrants’ rights, national law frequently reflects local priorities and political circumstances, producing considerable variation in how such rights are implemented and enforced.
G. International frameworks and national implementation
Global compacts: The Global Compact for Safe, Orderly and Regular Migration and the Global Compact on Refugees provide frameworks for States to adopt policies protecting migrants’ rights. These instruments emphasise interstate cooperation to strengthen safeguards and to ensure humane treatment.12
Human rights instruments: The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights serve as reference points for national legislation protecting migrants, encouraging States to align their domestic law with these international norms.
Case studies of national protection
Colombia: Colombia has developed comprehensive policies to safeguard internally displaced persons affected by armed conflict, reflecting adherence to international standards while accounting for local conditions.
Germany: Germany’s asylum policy represents an effort to reconcile humanitarian commitments with national security concerns, notably during the refugee crisis of 2015. Germany took steps to enhance its asylum procedures while complying with European Union regulations.
Australia: Australia’s migration policy has been contentious, particularly its offshore processing of asylum seekers. While it has developed legislative frameworks for migration management, critics have pointed to human rights concerns and to limited access to fair asylum proceedings.
A. Challenges for national protection
Inconsistent implementation: Uneven implementation of legislation may produce gaps in protection. While some States provide strong legal foundations for refugees, others impose rigorous entry procedures that impede access to asylum.
Political climate: The political climate strongly influences national migration policy. In certain regions, rising nationalism and anti-immigrant sentiment have produced restrictive laws that impair migrants’ rights.
Implementation gaps: A lack of resources, training, or political will can hinder the effective implementation of legislation, frequently leaving vulnerable groups, such as women, children, and those fleeing persecution, insufficiently protected.
B. Recommendations to strengthen protection
Legal reforms should align domestic law with international standards and enhance access to justice for migrants.
Investment in training for law enforcement and judicial authorities can improve the administration of migration law and better protect migrants’ rights.
Enhanced international cooperation can improve the exchange of information and best practices in migration management, contributing to a more holistic strategy for protecting migrants worldwide.
A survey of national safeguards reveals a complex picture in which international principles meet local realities. While several States have made progress in protecting migrants’ rights, substantial obstacles remain. Continued effort is required to bridge the gap between international obligations and national practice.
National policies for the protection of human rights defenders
Since the late twentieth century, there has been a marked increase in the number of States adopting national policies to protect human rights defenders. Colombia was among the first, enacting a protection programme in 1997 under Law 418, which addresses threats arising from political violence and internal strife.13
A. States with strategies to protect human rights defenders
Colombia has implemented extensive protective measures for human rights defenders against risks arising from armed conflict.
Brazil issued a national programme in 2004 and established a protection mechanism within the Secretariat for Human Rights, later placed on a statutory footing.
Mexico and Guatemala have enacted specific laws and policies to safeguard human rights defenders, although challenges in enforcement persist.
B. Challenges in implementation
Efficacy of policies: Notwithstanding the adoption of these policies, questions remain about their effectiveness. Many human rights defenders continue to face abuse, harassment, and violence.14
Political resistance: In certain States, hostile political environments may weaken protective measures for civil society. Governments may impose restrictions on fundamental freedoms, significantly affecting the operational safety and effectiveness of human rights defenders.
C. Legal frameworks and protection
International standards: The United Nations Declaration on Human Rights Defenders (1998) sets out the obligations of States to protect human rights defenders. It underscores the need for robust safeguards and remedies against violence or reprisals directed at defenders in the course of their work.15
National human rights institutions: Many States have established national human rights institutions (NHRIs), which are important in monitoring the situation of human rights defenders and advocating their protection. Such institutions can assist in formulating standards and protocols for the enhanced protection of defenders.16
Geographical disparities
Geographical disparities, often described as spatial inequalities, denote the uneven distribution of resources, economic activity, public services, and developmental opportunity across regions. Such disparities may arise between urban and rural areas, among states or provinces within a nation, or across countries. They are reflected in variations in income, employment, educational attainment, access to healthcare, infrastructure, and overall standards of living.
Several factors contribute to the emergence and persistence of geographical disparities. Economic forces tend to concentrate industry, investment, and employment in particular regions, accelerating their development while leaving others relatively underdeveloped. The unequal distribution of natural resources, including fertile land, mineral deposits, water, and favourable climate, further influences regional patterns. Historical circumstances, such as colonial administration, established trade networks, and past policy decisions, have also shaped contemporary regional inequalities. Political and administrative decisions concerning the allocation of public resources and development initiatives may either reduce or exacerbate regional imbalances. Social factors, including differences in literacy, skill levels, and human capital, likewise contribute to variation in regional prosperity.
Consequently, geographical disparities remain a major challenge for policymakers seeking to promote balanced and inclusive development, as these inequalities affect economic performance, social welfare, and access to opportunity across regions, as illustrated below.
Latin America: States such as Colombia, Brazil, Mexico, and Guatemala have progressed in developing protective frameworks, yet continue to face considerable obstacles in implementation and in the protection of human rights defenders.
Europe: European States often provide stronger legal safeguards for human rights defenders; nonetheless, rising nationalism and anti-immigrant sentiment may jeopardise their safety.
Africa: Several African States have adopted relevant regulations, although they frequently face challenges in implementation owing to political instability or insufficient resources.
A. Suggestions for enhancement
Strengthening legal frameworks: States should reinforce their legal safeguards by harmonising domestic legislation with international benchmarks, enabling human rights defenders to operate without fear of reprisal.
Capacity-building: Training law enforcement and judicial personnel in the rights of human rights defenders can enhance the effectiveness of protective measures.
Monitoring mechanisms: Establishing comprehensive monitoring mechanisms to detect abuses against human rights defenders can facilitate the identification of trends and guide policy reform.
The variation in national policies protecting human rights defenders reflects a complex interaction of local circumstances, political commitment, and international norms. Despite significant progress in many places, substantial challenges remain, requiring continued attention and action from both State authorities and civil society.
B. States recognised for strong frameworks protecting human rights defenders
Colombia: With the enactment of Law 418 in 1997, Colombia became one of the first States to establish a national protection scheme for human rights defenders, addressing the dangers associated with political violence and internal strife through a range of protective measures, including relocation and financial assistance for defenders at risk.
Brazil: Brazil established a protection mechanism under the Secretariat for Human Rights, comprising both direct protective measures and mechanisms for addressing the structural conditions that give rise to risks for defenders. The programme has developed to address the varied risks faced by defenders across different contexts.
Mexico: In response to rising levels of violence against human rights defenders, Mexico has enacted specific legislation to safeguard them and established mechanisms for protection and support, although challenges of effective implementation and accountability persist.
Guatemala: In response to regional concerns relating to violence and impunity, Guatemala has adopted national measures aimed at protecting human rights defenders. These establish parameters for State responsibility in safeguarding defenders, although enforcement remains uneven.
Costa Rica: Costa Rica is noted for its proactive approach to human rights, including safeguards for defenders. The State has developed legislative structures and institutions to monitor and protect defenders, emphasising the role of civil society in advancing human rights.
Argentina: Argentina has adopted measures recognising the importance of human rights defenders and providing mechanisms for their protection, and works actively with civil society organisations to develop effective responses to human rights challenges.
States such as Colombia, Brazil, Mexico, Guatemala, Costa Rica, and Argentina have made considerable progress in developing comprehensive policies to safeguard human rights defenders. While these frameworks represent important advances, challenges of implementation and political will remain critical variables affecting their efficacy. Continuous effort is required to address these issues and to ensure that defenders can work securely and freely.
Migration and law: cases in India
India’s legal framework on migration has been shaped by a body of case law addressing the rights and protection of migrants, particularly in the context of irregular immigration and refugees. Key decisions illustrate the complexity of Indian migration law by emphasising both constitutional rights and the concerns surrounding migrants. It may be noted at the outset that, in National Human Rights Commission v. State of Arunachal Pradesh, the Supreme Court held that the right to life and personal liberty under Article 21 of the Constitution extends to every person, whether citizen or not, and directed the State to protect Chakma refugees against forcible expulsion.17
A. Sarbananda Sonowal v. Union of India
This decision challenged the validity of the Illegal Migrants (Determination by Tribunals) Act, 1983, which applied only to Assam. The Supreme Court struck down the Act, holding that it failed effectively to address illegal migration and, by shifting the burden of proving citizenship from the State to the suspected migrant, impaired the State’s ability to secure its borders against illegal immigration.18
B. Mohammad Salimullah v. Union of India
This case concerned Rohingya refugees who apprehended deportation to Myanmar. Although the principle of non-refoulement was invoked, the Supreme Court held that, India not being a party to the 1951 Refugee Convention or its 1967 Protocol, non-citizens do not enjoy an absolute right against deportation, while directing that any deportation follow the prescribed procedure.19
C. Saidur Rahman v. Union of India
The Gauhati High Court considered the rights of detained foreigners seeking refugee status. The Court upheld the detainees’ right to seek recognition as refugees from the UNHCR and directed the State to facilitate their applications, reinforcing the principle that even persons liable to deportation may seek international protection.20
D. Nandita Haksar v. State of Manipur
This case concerned Myanmarese nationals who had entered India following the 2021 military coup. The Manipur High Court recognised them as asylum seekers rather than ordinary migrants, held that the protection of Article 21 encompasses the principle of non-refoulement, and permitted them to approach the UNHCR, reflecting an evolving judicial recognition of humanitarian grounds for migration.21
E. Marium Khatoon v. State of Bihar
This case concerned Bangladeshi migrants held in an after-care home. The Patna High Court directed the establishment of detention facilities for irregular migrants in accordance with central government guidelines, emphasising humane treatment and proper procedures for repatriation.22
F. Rahima Khatun v. Union of India
This case involved a challenge to an ex-parte order declaring the petitioner an illegal migrant. The Gauhati High Court set aside the order for want of a proper hearing, emphasising the requirement of due process in determining an individual’s citizenship status.23
Indian migration law is thus characterised by significant judicial interpretation reflecting both constitutional principles and humanitarian concerns. While some decisions have expanded safeguards for vulnerable groups such as refugees, others underscore persistent difficulties surrounding deportation and legal recognition. These cases illustrate India’s nuanced approach to migration and its legal implications for citizens and non-citizens alike.
Landmark cases in international migration law
Several major decisions have shaped international migration law, notably those of the European Court of Human Rights (ECtHR). These cases address issues such as deportation, the right to asylum, and the treatment of migrants.
A. Soering v. United Kingdom
A German national facing extradition to the United States on murder charges contended that he would be exposed to inhuman treatment on death row. The ECtHR held that extradition could engage the responsibility of the sending State where there is a real risk of treatment contrary to Article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment. The decision established that States must assess the treatment a person may face if removed.24
B. Hirsi Jamaa and Others v. Italy
Italian authorities intercepted a group of migrants at sea and returned them to Libya without allowing them to seek asylum. The Grand Chamber found violations of Article 3 and of Article 4 of Protocol No. 4, which prohibits collective expulsion, holding that States must examine individual cases before removal and reaffirming the principle of non-refoulement.25
C. Sharifi and Others v. Italy and Greece
In this case, Italy returned Afghan and other migrants to Greece without properly examining their asylum claims. The ECtHR held that Italy had violated Article 4 of Protocol No. 4 through indiscriminate collective expulsion, and that Greece had failed to provide effective access to the asylum procedure.26
D. Ilias and Ahmed v. Hungary
Two asylum seekers were held in a Hungarian border transit zone before being removed to Serbia. The Grand Chamber found a violation of Article 3 in respect of their removal, holding that Hungary had failed to discharge its procedural obligation to assess the risks arising from their return.27
E. N.D. and N.T. v. Spain
This case concerned the summary return to Morocco of migrants who attempted to enter the Spanish enclave of Melilla. Reversing the Chamber, the Grand Chamber held that, in the particular circumstances, there had been no violation of Article 4 of Protocol No. 4, in part because the applicants had not made use of the available lawful means of entry. The judgment remains significant for its analysis of the prohibition of collective expulsion at land borders.28
F. M.A. and Others v. Lithuania
In this case, Lithuanian border guards refused to allow the applicants to lodge asylum applications and returned them to Belarus. The ECtHR found violations of Articles 3 and 13, emphasising the obligation of States to provide access to asylum procedures and to protect individuals from ill-treatment upon return.29
These decisions illustrate the evolving landscape of international migration law and the need to balance State sovereignty against the protection of individual rights. They reaffirm core principles such as non-refoulement and the requirement of fair asylum procedures, which continue to influence the manner in which States discharge their migration-related legal obligations.
The effect of national policies on human rights defenders in high-risk areas
A. Legal frameworks and protective mechanisms
National policies, comprising legislation and protective procedures, provide legal support for human rights defenders. The effectiveness of these protections, however, depends heavily on implementation, and persistent risks to defenders remain.
B. Responses to violence and threats
Immediate protective measures, such as relocation programmes or security arrangements, form part of a broader strategy. Comprehensive protection should also address the underlying structural conditions that give rise to threats against defenders.
C. Political climate and support
Political will substantially affects the formulation and implementation of national policy. Supportive political environments can improve the efficacy of protective mechanisms, and engagement with civil society organisations tends to enhance their effectiveness.
D. The role of national human rights institutions
National human rights institutions play a crucial role in monitoring and advocating for human rights defenders and in providing forums for reporting violations. Some have established early-warning systems to detect threats to defenders and to enable prompt responses.
E. Challenges in high-risk areas
Weak law enforcement and impunity for perpetrators are commonly linked to violence against human rights defenders. Restrictive legislation may criminalise lawful human rights activity and instil fear among defenders. Significant gaps also persist in the legal mechanisms governing migration policy.
Implementation gaps include disparities between policy and practice, inadequate institutional frameworks, insufficient political will, and legal ambiguities and inconsistencies. Weak support systems, together with difficulties in data collection and monitoring, further limit access to social security, healthcare, and other essential services.
Addressing these deficiencies would require a coordinated effort by States to develop legislative frameworks, strengthen institutional capacity, ensure political commitment to migrants’ rights, and improve data collection and monitoring.
Conclusion
Migration law at the global level reflects the difficult balance between a State’s right to regulate its borders and the need to respect the rights of individuals seeking safety, opportunity, or asylum. Although international frameworks such as the Refugee Convention and human rights treaties provide crucial guidance for the protection of migrants, it generally falls to individual States to give these norms practical effect.
As global migration patterns continue to change in response to economic inequality, climate change, and conflict, migration policies that are both effective and humane become increasingly important. States must address the challenges of border control, economic impact, and humanitarian emergencies while maintaining compliance with their international obligations.
The future development of migration law lies in cooperation among governments, international organisations, and civil society to design policies that promote both national security and the protection of migrants’ fundamental rights. Addressing the root causes of forced migration, expanding legal pathways, and ensuring equal treatment for all migrants will be essential to managing this global challenge effectively.
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Footnotes
1. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948).
2. Convention Relating to the Status of Refugees art. 33, July 28, 1951, 189 U.N.T.S. 137.
3. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171.
4. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
5. See Int’l Org. for Migration, International Migration Law: How Does IML Impact My Work?
6. Global Compact for Safe, Orderly and Regular Migration, G.A. Res. 73/195 (Dec. 19, 2018).
7. Universal Declaration of Human Rights, supra note 1.
8. Convention Relating to the Status of Refugees, supra note 2, art. 33.
9. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18, 1990, 2220 U.N.T.S. 3.
10. See International Covenant on Civil and Political Rights, supra note 3, arts. 7, 9, 13.
11. See Off. of the U.N. High Comm’r for Refugees, Note on the Principle of Non-Refoulement (Nov. 1997).
12. Global Compact for Safe, Orderly and Regular Migration, supra note 6.
13. See Protection Int’l, The Worldwide Growth of National Policies for the Protection of Human Rights Defenders.
14. Id.
15. Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, G.A. Res. 53/144 (Dec. 9, 1998).
16. See Global Alliance of Nat’l Human Rights Insts., Supporting Human Rights Defenders.
17. National Human Rights Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742.
18. Sarbananda Sonowal v. Union of India, (2005) 5 SCC 665.
19. Mohammad Salimullah v. Union of India, 2021 SCC OnLine SC 296.
20. Saidur Rahman v. Union of India, W.P.(C) No. 3576/2017 (Gauhati H.C. 2022).
21. Nandita Haksar v. State of Manipur, W.P.(Crl.) No. 6 of 2021 (Manipur H.C. May 3, 2021).
22. Marium Khatoon v. State of Bihar, C.W.J.C. No. 390 of 2020 (Patna H.C.).
23. Rahima Khatun v. Union of India, W.P.(C) No. 8284/2019 (Gauhati H.C. 2019).
24. Soering v. United Kingdom, App. No. 14038/88, 11 Eur. Ct. H.R. (ser. A) (1989).
25. Hirsi Jamaa v. Italy, App. No. 27765/09, 2012-II Eur. Ct. H.R. 97.
26. Sharifi v. Italy & Greece, App. No. 16643/09 (Eur. Ct. H.R. Oct. 21, 2014).
27. Ilias & Ahmed v. Hungary, App. No. 47287/15 (Eur. Ct. H.R. Nov. 21, 2019).
28. N.D. & N.T. v. Spain, App. Nos. 8675/15 & 8697/15 (Eur. Ct. H.R. Feb. 13, 2020).
29. M.A. v. Lithuania, App. No. 59793/17 (Eur. Ct. H.R. Dec. 11, 2018).