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The Movement of persons across borders

Are there any generally accepted principles and rules of current international law relating to the movement of persons across borders? Is international migration governed by a cohesive legal framework that speaks to movements into and out of states, for temporary and permanent stays, and that applies to nationals, aliens, stateless persons and refugees alike? These challenging questions are the subject of The Movement of Persons Across Borders, a study that grew out of a 1990 meeting of thirty-eight legal experts. The study's objective was to identify "basic, across-the-board principles and rules [of international law], to which other rules and regulations should conform" (p. viii). The book is therefore organized around the eighteen governing rules that these experts found to exist, according to their "best collective estimate, on the basis of available evidence" (id.). Wojciech Goralczyk, Barry Sen, Ved Nanda, Cesar Sepulveda, and Guy Goodwin-Gill each drafted a part of the work. These contributions were reviewed by a tenperson senior editorial board, were further refined in response to the comments of twenty-three advisory committee members and a select group of external interlocutors, and finally were combined in monograph form by editors Louis Sohn and Thomas Buergenthal. This pilot project is to be followed by a final study that will include greater commentary and an expanded survey of state practice. It would, however, be a mistake to view this book as more than an invitation to commence the process of reflection on the principles of a general legal framework for international migration. In its present form, the monograph lacks conceptual consistency and is unclear on the critical issue of which principles may appropriately be categorized as international law. First, the monograph's general rules embrace the traditional assertion that all principles governing international migration are to be conceived as limitations on the inherent right of states to regulate entry into and exit from their territory (pp. 1-3, 49). In contrast, the report's discussions of the rules to be applied in various contexts implicitly adopt Nafziger's position that the starting point for analysis is in fact "a qualified duty to admit aliens when they pose no danger to the public safety, security, general welfare, or essential institutions of a recipient state." An explicit espousal of this stance would have made sense, given, for example, the study's position that a state may lawfully deny entry only to certain categories of aliens (pp. 71-74), the presumed right of entry of temporary migrants (p. 55), and the duty provisionally to admit refugee claimants (p. 123). There would have been no need to attempt to extract a duty to avoid arbitrary behavior toward wouldbe entrants from an unwieldy mix of inapplicable conventional law and Western case law (pp. 23-29), since the onus to defend exclusion would be presumed to fall on the state seeking to limit migration.