Being a presentation by Barrister Samuel Olugbenga Adewusi, a United States of America based Lawyer at the 2nd edition of the Journalists International Forum For Migration (JIFORM) summit on October 16, 2020.
Migration, Migrants, and International Law
Good afternoon distinguished ladies and gentlemen. I observe and stand on all existing protocols I thank our gracious host Mr. Ajibola Abayomi for putting together Journalists International
Forum for Migration (JIFORM). Thanks also to all those who worked with Mr. Abayomi to make JIFORM a successful event.
My name is Samuel Olugbenga Adewusi, I am currently a barrister or lawyer licensed to practice in 2 jurisdictions in the United States. I am also a member of the US Supreme Court Bar. My areas of practice include US immigration law, family and domestic relations, personal injury law, and contract negotiations.
As you can tell from my name, I am an immigrant. My migration destination was United States. And I have been in the USA since 1981, which is over 39 years now. My first degree was in political science. While studying to obtain my juris doctor degree, I had the opportunity to study international law and international trade law.
My topic today is “Migration, Migrant and International Law”. This subject is an open ended and a very wide topic that this forum and my expertise may not be adequate to cover. Still, I will do my best to do justice to a very small section of this topic .
Today, due to historical facts, geo-political and economic factors, currently there is not a single area of international law that adequately protects the rights of immigrants. And or is there any aspects of international law that are strong enough to ensure an orderly and safe migration of all people across the world.
According to Prof. Ali Mazrui, geography is the mother of history. So, the first reason for my opinion that current international law does not provide adequate migration protection is due to geo-political factors. Thus, borders created by nation states confer upon those states the capacity and necessity to fashion laws and regulations to ensure flow of people into and out of the nation states.
The second reason is historical. As you know, throughout history humans have never been able to live together in a large group without wars and disputes. As a result of countless wars, disparate and similarly inclined groups joined together based on similar language, and tribal
affinity to form the modern nation states we see today.
A vivid example of this type of grouping after countless wars is that of European nation states, where a nation state like Luxembourg with a population of less than an area in Kano can form a country – with borders, and immigration and
I will not delve into the formation of nation states in Africa because we know that the European 1884 partition of Africa (originating at the Berlin Conference) never afforded the modern African nation states the opportunity to establish nations that evolve organically based upon cultural, linguistic and historical affinities.
Nevertheless, the European small tribal and ethnic groups aggregation to form medium and small nation states worked for Western Europe; and may have contributed to less wars since the end of the 2nd World War. As noted above, each time a country or a nation states formed during
history, it naturally creates borders. And those borders are usually protected by any means necessary.
Once a nation creates and marked its borders, security and expediency compels the nation state to protect it. And in order to secure its borders, nations must put up a gate and regulates the flow of immigration and migrants. History shows that nations fall because they fail to secure their borders from spies disguised as migrants. Another factor that history show us is that nations states have used borders as a means of preventing diseases and infections from spreading to their population.
The third reason is that as a result of economic factors, nation states must feed, clothe and provide for its people. Therefore, a nation state that permits too many immigrants into its border will inevitably create an undesirable job competitions and wage depression for its citizens. And
because citizens do vote, leaders cannot afford to fail to protect its citizens. In most cases, during harsh economic times resentment against foreign migrants can increase exponentially commensurate with the level of economic hardship. Hence, leaders of nation states will rather
satisfy their citizens and win elections than push the issue foreign migrants in internal and or international policies.
Furthermore, nation states’ interactions and transactions on the international stage, more often than not, lean heavily in favor of trade and human rights law. To emphasize this point, the two major sections of international law taught at law schools are international trade and international human rights law. Sovereignty is another important factor in international law.
However, I will touch upon it later. Under international law there are quite a few agreements, compacts and treaties that sound very
nice on paper, but do nothing to protect an orderly and safe migration of all peoples. An example of such compact is the Global Compact for Safe, Orderly and Regular Migration or (GCM). The GCM is “an inter-governmentally negotiated agreement, prepared under the auspices of the
United Nations, that describes itself as covering “all dimensions of international migration in a holistic and comprehensive manner.”
Although, the GCM was formally endorsed by U.N. General Assembly on 19 December 2018, it is virtually a toothless agreement. An opinion published by the New Zealand Crown flatly stated that GCM “will be non-binding, but will not be legally irrelevant, and “courts may be
willing…to refer to the Compact and to take the Compact into account as an aid in interpreting immigration legislation.”
1 My question is what is the use of a Compact that is non-binding on
any signatory parties? It is important to note that 152 countries voted in favor of adopting the GCM, while 4 countries and the United States voted against it, and 12 countries abstained.
We should not forget the hard work that led to the adoption of the non-binding GCM. On September 19, 2016 the U.N. General Assembly unanimously adopted the New York Declaration for Refugees and Migrants. But for the 2016 New York Declaration there would
have been no GCM.
I will now come back to sovereignty. The Oxford dictionary defines sovereignty as “the authority of a state to govern itself or another state. While Wikipedia defines sovereignty as “the full right and power of a governing body over itself, without any interference from outsid
sources or bodies.”
And I will not bore you with the four subtypes of sovereignty as defined by
4. Just remember that I mentioned the three factors of history, geo-politics and economics earlier.
All those factors go into the components that make up or shape the concept of sovereignty for nation states. Although, the textbook definition may not so define sovereignty, I make bold to take all three factors into consideration when defining it. And sovereignty is a significant factor
that shapes the essence of each nation states. Without sovereignty, a nation state is a shell.
Sovereignty gives each country, no matter how small, power to regulate its internal affairs as it sees fit, to regulate migration and control the number of migrants that can enter or exit its borders, and to engage in a meaningful relationship with other nations.
Herein lies the conundrum of international law. International law respects and upholds sovereignty for all nation states; in reality. And if sovereignty gives nations states the ultimate capacity and power to regulate the flow of immigration and migrants into its geographical space the same international law will be powerless to ensure an orderly and safe migration for all people of the world.
But the situation is not too dismal and hopeless. Regional blocs such as EU, ECOWAS, SADC and others have been able to craft regional agreements that enable free flow of people across and within the respective blocs. Although, some blocs do better than others related to how much free flow of immigration can be enjoyed by citizens within the bloc. I have heard that before Brexit, EU is a model of free flow of immigration amongst the EU bloc citizens.
However, as we have seen with the sad and tragic situations and incidents when African attempting to emigrate into the EU perished at sea, international law and regional agreements are totally ineffective to
protect the lives of the world’s migrants and immigrants. Particularly, if those immigrants are poor, or are emigrating from less developed countries, and or running away from war torn states.
EU is not the only culprit when it comes to stemming the inflows of immigrants outside its bloc. Other regional blocs are biased against immigrants outside their regions. And don’t get me
started with ECOWAS. As we all know, stories from migrants within ECOWAS regional blo have painted some not too flattering image of obstacles faced by citizens within the bloc when
traveling within the ECOWAS region.
One aspect that should not be over-emphasized is that international law is powerless to protect
poor migrants. Especially, if those immigrants are from less developed countries of the world,
and or fleeing from wars and persecutions. Thus, we witness nation states doing everything in their sovereign powers to curtail and stem the flow of poor immigrants. However, when it comes to the highly skilled and rich immigrants, the same nation states that build walls against poor
immigrants usually rolls out the red carpet for the skilled and rich demographics.
My conclusion is that due to historical facts, geo-political and economic factors, currently there is not a single area of international law that adequately protects the rights of immigrants. And or
is there any aspects of international law that are strong enough to ensure an orderly and safe migration of all people across the world.
Nevertheless, some proposed solutions may improve the current situation.
One proposed solution is that regional, bilateral, and multilateral migration agreements might work where widescale international law fails to protect the free flow of immigrants and migrants.
As mentioned earlier some regional blocs have been able to craft agreements that enable an encourage free flow of immigration within their respective blocs. A good example is the
European Union (EU).
Based on anecdotal evidence, Philippine also has been able to execute bilateral and multilateral agreements with several developed countries regarding protection and emigration of its skilled and unskilled citizens – under the Overseas Filipino Workers (OFW) scheme. This scheme may
be another means for other less developing countries to explore modalities to regulate and bring order to the emigration of their citizens.
Another solution that can be explored may be interregional immigration and migration agreements and treaties among contiguous regional blocs. The key benefit about this solution is that shared borders may lead to shared language and culture, and probably shared history and
Recently, the African Union rolled out the African Agenda 2063 flagship project which is “The African Passport and Free Movement of People.” One of its aims is to remove restrictions on “Africans ability to travel, work and live within their own continent.” However, its aim and objectives are aspirational at this point in time. And if my interpretation is correct, it is set to take place sometimes in the uncertain future. Although, African Agenda 2063 is a laudable effort to encourage the free flow of immigrants and migrants within the African Union, I am afraid its benefits may take too long to arrive.
Should African Union negotiate continental immigration agreement or a treaty with the European Union, or with some regional bloc in Asia. This may be another solution that can be explored in
the nearest future. But because 54 states may be too unwieldy, regional blocs within the A may chose to explore regional immigration/migration agreements and treaties with other blocs outside Africa.
One drawback is that this solution may lead to balkanization and inter-region rivalry. But all cards should be on the table when searching for solution that ensures free flow of people across international borders.
So, when it comes to migration, migrants, and international law – cooperation and creativity should be paramount in finding a lasting workable solution that protects the rights of immigrants.
Samuel G. Adewusi
Juris Doctor, M.Sc. Cybersecurity Law and Policy, BA Political Science