Annual Theme 2011-12
Program on Law and Human Development
2011-2012 Annual Theme:
Migration, Law, and Human Development
Today the phenomenon of human migration affects dramatically every corner of the world: rich areas and poor; countries of origin, transit, and destination; local communities and large nation states. It is estimated that more than 200 million people – some say many more – are currently living in places other than their countries of origin. The dimensions of human migration are not only vast in sheer numbers of people, but also in complexity. They provoke social, economic, political, ethical, cultural and religious problems, as well as (not least) legal ones. The multifaceted and pervasive problems that human migration poses in the contemporary world thus challenge our traditional disciplinary boundaries and intellectual categories. Understanding and assessing the significance of the phenomenon thus urgently requires fresh approaches that seek integrated understanding and approaches to the human reality at issue.
Seen from the perspective of integral human development, migration presents critical opportunities as well as very imposing difficulties. Migration can enable individuals to develop the capabilities essential to their human development by, for instance, affording them greater political freedoms and more economic opportunity; conversely, it can place them in positions of extreme vulnerability and exploitation, substantially hindering their capabilities. Similarly, in the communities from which migration occurs and toward which migration flows, human development can be both stimulated and challenged by the phenomenon. On the one hand, inbound migration can provide societies with economic and cultural dynamism and vital social capital, and generates a healthy demand for the gratuitousness and solidarity essential to integral development. On the other hand, migration can fragment the communities from which people depart. In those places where they end up, migration can have a profound impact on communities’ abilities to integrate new members economically and politically, generates new pressures on their resources, and requires adaptation to shifting cultural and political landscapes – all placing stresses on the community’s ability to seek and realize the common good of all its members.
All of those possibilities and tensions in the relationship between migration and human development are inescapably framed and mediated by the institutions, processes, policies, and rules of law. Most basically, law constructs and sustains the meanings of fundamental terms and categories of analysis like “state sovereignty,” “migrant,” and “refugee.” It allocates and enforces rights, and limits their scope. The institutions of law mediate disputes and conflicts with the aim of permitting the integration, or at least peaceful coexistence, of competing interests and pluralistic communities. Law is an instrument of policy in a purely instrumental sense, but also is expressive of the broad social values that constitute community life. Accordingly, for example, ideas and ideals of citizenship represent some of the most elemental ways in which political communities come to define themselves and the scope of their obligations, and at the same time the availability or preclusion of citizenship serves as a way to manage human and material resources and to structure political boundaries. The rules and processes of law are the currency in which citizenship is conferred or denied, in which the rights of citizenship are specified, and in which inchoate boundaries of community are made tangible – all for better or for worse, when evaluated in terms of human development.
Adding one more layer of detail to our understanding the relationship between law, migration, and human development, one could identify three loose categories or “moments” when law is most relevant. First, law can have a great impact on the roots of human migration. That is, the decision to migrate, whether forced or voluntary, is often shaped by the presence or absence of law. For instance, the lack of a rule of law, the failure to protect basic rights, or denial of access to justice can provide strong incentives to emigrate. In some countries, legal regimes actively encourage and facilitate migration, either inbound or outbound, while conversely legal structures and rules can also work to contain migration, making it difficult or even punishable (as in the case of human trafficking, for example). Second, law seeks to regulate and govern the movement of persons. The majority of this regulatory content is at the national level; migration is one area of global affairs that is subject to relatively little international governance, even though it is clear that no state can hope to address the challenges of migration without substantial cooperation and coordination from other states in the international community, as well as from non-state actors (both supra- and sub-state). Third, law comes heavily into play in attending to the consequences of migration, in particular insofar as the phenomenon helps to generate more pluralistic societies and the presence of minorities within otherwise more culturally homogeneous populations, thus provoking debates about such deeply contested issues as the fundamental rights of non-citizens, multicultural accommodations of different ethnic or religious groups, protection of vulnerable populations, and the distribution of limited economic and social resources.
The Program on Law and Development will use these broad-brushed reflections to demarcate the boundaries of its annual theme for the 2011-2012 academic year, on migration, law, and human development. This theme will shape the principal initiatives of the Program: research projects and publications, seminars and lectures, visiting scholars, and other initiatives. Within this very open and wide research space, the Program is interested in pursuing and supporting proposals to examine an array of more specific issues, such as the following:
- How is the concept of sovereignty evolving and what is human migration’s role in this evolution? How do changes in state sovereignty (both conceptual and empirical) bear on our understanding and analysis of the phenomenon of migration and its attendant legal and moral demands?
- What are the root causes of migration and the role of law in addressing them (e.g., fragility of the state, lack of rule of law, unequal development and integration into the globalized systems of production and exchange, environmental degradation)?
- What is the scope of legal “protection” that migrants need to receive? What are the roles, and the limitations, of human rights concepts and practices in expressing them adequately? How do the rights of migrants (such as access to justice) influence the degree of their social exclusion or integration?
- Do different ways of conceptualizing and instantiating “social rights” provide better or worse ways of understanding and addressing the challenges of migration through law?
- What are the implications for human development and law of fragmenting the phenomenon of migration into different categories – e.g., economic migration, internal migration, forced vs. voluntary migration, etc.?
- What are the possible legal implications of a “right of membership” in political communities and how is this related to structures of citizenship? How do circular migration and transnational political identities relate to concepts of citizenship, membership, and identity?
- How does the emerging international law principle of a “responsibility to protect” bear on migration issues?
- How does the “human security” paradigm in international development differ from a human development approach to migration?
- What insights emerge from considering the relationships and responsibilities (versus rights) of the various actors involved in human migration, whether they be actors from international organizations, local governments, civil society, or the migrants themselves? How do different approaches to phenomenon of migration reflect different understandings of human freedom and human development? What relevant divergences in those understandings may be identified among different approaches to human development (e.g., the Human Capabilities Approach versus the idea of integral human development in Catholic social tradition)?
- What insights does the Human Capabilities Approach generally have for addressing the challenges and opportunities of migration?
- How does the Catholic social tradition understanding of the universal common good relate to the boundaries of political communities and to the obligations of solidarity within and across borders? What distinctive contributions emerge from CST for helping us address the challenges of migration? For example, what are the implications of gratuitousness and solidarity for receiving countries’ regulation of migration and for receiving communities’ relationship to migrants?
- What does the principle of subsidiarity contribute to our understanding of how migration relates to law and integral human development? What rules and institutions, practices and policies would a subsidiarity-based approach to law and society generate to address migration in ways most conducive to integral human development?
- What roles do religiously-inspired and affiliated groups as well as other civil society actors play in addressing the problems of migration? Is there promotion and protection of civil society groups that address migrant needs? More generally, what if any is the connection between religion and religious freedom, on the one hand, and migration and human development, on the other?
- What implications does an understanding of migration as a human “encounter“, both among individuals and among peoples, have for law and human development?
It is important to emphasize that these are only illustrative and non-exhaustive examples of the kinds of questions that the Program will be open to examining. Which of these will in fact be pursued, and what others may be added, will depend above all on the interests and work of the community of students, scholars and practitioners that the Program on Law and Human Development seeks to bring together. In all of its programming, the PLHD aims first and foremost to be the locus of a human encounter that generates new and interesting ways of understanding and furthering integral human development through law.