Why Migration is a Fundamental Human Right

By Emma Clare Maxwell

One of the most common critiques of human rights-focused democracies is that the advancement of rights is almost never enacted through legislative or executive effort. Rather, advances in both the recognition and practice of human rights comes through grassroots movements and action by civil society. Despite this, our entire human rights framework is centered on the authority of the state, as the Universal Declaration of Human Rights notes that the jurisdiction of enforcement for human rights norms is tied to national territory, effectively justifying an unequal application of rights even as the UDHR strives for “a social and international order in which the rights and freedoms…can be fully realized.” In other words, human rights only apply in nations where they are sanctioned to do so by national governments. While this framework is understandable, given the logic and structure of the United Nations, it creates a paradox where the organizations and movements who practically construct our understanding of human rights have no official ability to enforce said rights.

In no area are the consequences of this paradox more evident than in the case of migration. Migration is not officially recognized as a fundamental right, despite persistent calls to do so from a wide variety of actors, and many migrants themselves. Migration is a necessary precursor for individuals to realize other rights, including the underlying principles of life, liberty and security. The history of voluntary migration is made up of stories of those who sought new shores in search of new freedoms. While official sources will call for the rights of migrants, the rights related directly to migration are riddled with caveats, restrictions and exceptions. 

The UDHR limits the right to movement specifically within national borders, thus rendering the following provisions: individuals cannot be restricted from leaving a country, and individuals have the right to change their nationality, somewhat moot as there is no obligation for the country of arrival to welcome migrants. The right to resettle is only upheld when combined with the right to political asylum. Yet the basis for asylum is vague, leaving states to practice a wide array of asylum laws, and entire populations of involuntary migrants fall through the cracks.

The international community has recognized that this patchwork system for migration management opens the door for ongoing rights abuses of inherently vulnerable groups of people. Efforts at reform, such as the 2016 Global Compact on Migration, have fallen short of recognizing migration and resettlement – the right not only to leave one country, but the right to be welcomed into a new one – as a fundamental element of human rights framework. 

Why is it that states, or organizations of states, do not accept that migration is an unconditional right? To be sure, there are serious logistical and economic challenges in welcoming migrants. There is also a fear of change in culture and national identity. Finally, on a fundamental level, the recognition of the right to cross borders upends the notion that human rights are ultimately a matter of state jurisdiction, to be managed within the borders of sovereign territory. We return to the paradox of believing that human rights are universal, while accepting that their application will widely vary from one regime to the next. To unequivocally recognize migration as a human right is to call for a new understanding of human rights that is not ultimately tied to national jurisdiction.

Thus, it is again mass movements and pioneering individuals who challenge and reform our understanding of human rights, and who defend them regardless of legality. The decision to migrate, whether recognized as such, asserts that migration is key to human existence, and a necessary practice not only for those fleeing violence, but also for those seeking to secure livelihoods, education, political expression, build families and generally seek happiness and fulfillment.

The decision to migrate, whether recognized as such or not, is an assertion that migration is a key element of human existence, and a necessary practice to not just flee from violence, but to secure livelihoods, education, political expression, build families and generally seek happiness and fulfillment.

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Clare Maxwell is a 1st year MDev student from the U.S. She has a journalistic background reporting on grassroots political movements in the middle east. You can find her at Instagram as @ClareThinksThoughts

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Featured Photo: “Mural: Cops and immigrants” by Franco Folini is licensed under CC BY-SA 2.0