How the International System Copes with Involuntary Migration: Norms, Institutions and State Practice

The Evolution of a Normative Structure

Roots

Were they but accessible, Philistines and Hebrews of Biblical times could attest that mass migration is nothing new, either as a phenomenon or a problem: sometimes for the migrants, sometimes for the peoples they encounter, sometimes for both. Indeed one could structure an entire history of the human race in terms of the great migrations—of Vandals and Visigoths, Arabs, Mongolians and Turks, Jews and Huguenots, Spanish and English, Zulu and Dutch, Irish and Italian, Russians and Armenians, impelled at a certain moment (by duress, ambition, dreams) to move from the known place to one that could at best be imagined. Through great migrations, we humans have filled up the once empty spaces of the earth until now there are none, other than the regions of water, sand and ice.

Some migrants came quietly; some, like the Jews and Huguenots, were welcomed in certain times and places. Many others came with trumpets and pikes, came as conquerors and stayed to rule. Whatever happened when people sought to migrate or resist migration, for millennia it happened without the guidance or restraint of commonly accepted rules and principles. Those who were strong, took what they wished; those who were weak, accepted what they must.

International legal regulation of anything, much less migration, is a relatively recent development, conventionally dated from the middle of the seventeenth century. The foundation of the system of principles and rules accepted by the leading states, the concept and value that first lent the system coherence, was sovereignty, the sovereignty of princes initially, later the sovereignty of nation-states. And the operational essence of the idea of sovereignty was exclusive legal authority within the recognized limits of the sovereign’s domain. That authority included discretion to determine who could enter, who could remain, and, although this was rarely an issue, who could leave.

As long as sovereignty was, with trivial exceptions, a property of hereditary rulers, it did not portend much for migration, because a ruler’s authority was contingent not on his or her special relationship to a determinate people in a determinate place, but on heredity and hence on the fortuities of marriage, death and descent. That a people should change their sovereign and a sovereign his people was in no way anomalous. In addition, many boundaries were vaguely demarcated and disease could in the space of an historical moment strip people from the land. In ages of high infant mortality and brief adult lives, moreover, when perforce most of Europe was thinly populated and skilled artisans, shrewd bankers, and adroit merchants at a premium, rulers would often welcome migrants, for they added to the territory’s sparse human capital. The rich and the skilled continue to find a warm welcome in many countries.

The French Revolution marked a great change. It restored to prominence a principle of political organization salient in the Greco-Roman world on whose shattered base modern Europe had been built. It restored the principle of citizenship. A particular people for a particular place. A people with a right to that place and claims to govern it whether themselves or through proxies. A people made one by history, distinct from other peoples, with mutual obligations by virtue of their shared distinction. A national community. In Prussia and Russia and Austria-Hungary, there were subjects, not citizens. Subjects came and went along with territories won, lost and exchanged. Most people lived very close to the land. Outside army duty, they might in their whole lives not travel more than a few miles beyond their village. To a peasant, the man wandering over from the next valley was “foreign.” One owed him as little as one owed someone who had wandered in from the other side of Europe.

The makers of the Revolution proclaimed an end to all that. Those who accepted the Revolution and happened to live within that agglomeration of territories haphazardly assembled by the generations of monarchs who had called themselves French were “Citizens.” Others were not. Without the “other,” without the “foreigner,” there...