While scientific debate continues, it is commonly believed that the first modern humans migrated out of Africa tens of thousands of years ago, and traveled across the globe. This movement of people continues today, with over 3% of the world’s population living outside their home countries. Whether driven by choice or circumstance, it’s important to understand the legal distinctions between those who move voluntarily and those who are forced to flee.
How do we differentiate between migrants, asylum seekers, and refugees? Which international laws define their rights and status? And what are the latest developments in EU migration policies? This article is designed to provide the most basic information from a legal perspective. I hope that by the end, you’ll walk away with a clearer understanding of this complex and widely debated topic.
The Faces of Migration
Who is a migrant?
“Migrant” is a term that applies to anyone who moves from one country to another. There’s no one-size-fits-all definition, but the OHCHR broadly describes migrants as people living outside their country of citizenship or nationality. This also includes stateless individuals who live outside their country of birth or habitual residence.
There are two key types of migrants: (1) Regular migrants: People who move according to the rules – getting visas, work permits, or residency papers before they enter a new country. (2) Irregular migrants: These individuals don’t have the proper legal documents or enter a country in violation of immigration laws. You might hear them referred to as undocumented or unauthorized migrants.
What about Asylum Seekers?
Turning to asylum seekers, they are people who have fled their home countries and are asking for protection in another country. The reason? They are trying to escape serious threats like persecution, war, or human rights abuses. While they wait for their application to be processed, they are called “asylum seekers.” With 6.1 million asylum seekers worldwide and 5.2 million individuals in need of international protection, a fair and efficient asylum process seems crucial.
Aren’t Asylum Seekers just Refugees?
Similarly, refugees are people who have been forced to leave their home country because of a well-founded fear of persecution based on factors such as race, religion, nationality, or political views. The key difference between refugees and asylum seekers is that refugees have already been officially recognized and granted protection. Currently, there are over 36 million refugees globally, and more than half come from countries like Syria, Afghanistan, and Ukraine. The stateless people who applied to asylum in a safe country and accepted are also referred to as refugees and account for around 4.4 million individuals across the globe.
Can you be a Refugee in Your Own Country?
Around 68.3 million people worldwide are internally displaced, accounting for 58% of the global forcibly displaced population. This category of individuals is named as Internally Displaced Person (IDP). Unlike refugees, IDPs are forced to flee their homes but stay within their country’s borders. Many remain trapped in dangerous areas and continue to face severe risks even after fleeing. As some of the world’s most vulnerable individuals, they often lack access to essential resources and protection. In 2023, Sub-Saharan Africa, home to 46% of the world’s internally displaced people, was the hardest-hit region, with conflict and disasters.
A Look at International Migration Law
The Role of State Sovereignty
While individuals have the right to leave their country, states have the authority to control who enters or stays within their borders. This right is part of what’s known as state sovereignty. Basically, a state can govern itself without outside interference. This concept dates back to the Treaty of Westphalia in 1648 and is still relevant today. In fact, international law respects this sovereignty, but it also imposes obligations on states to protect human rights, including the rights of refugees. This sovereignty principle is enshrined in the United Nations Charter and further elaborated in the Montevideo Convention on the Rights and Duties of States (1933). The International Court of Justice has also upheld these principles in cases such as Nicaragua v. United States (1986), which reinforces the importance of non-intervention. While these last sentences may seem like complex legal jargon, the main takeaway is that sovereignty is a fundamental principle of international law that drastically influences how countries govern their borders and engage with each other.
Existing International Legal Tools
To protect the rights of refugees while still respecting the sovereignty of individual states, a number of international legal frameworks have been put in place. For instance, the European Court of Human Rights gives states the authority to manage the entry, residence, and expulsion of foreigners, though certain restrictions are imposed by international law. Refugee and human rights laws ensure that asylum seekers and refugees are protected, even while upholding the sovereignty of nations.
A key example is the principle of non-refoulement, a rule grounded in customary international law and reinforced by treaties like the 1951 Refugee Convention and its 1967 Protocol. This principle prohibits the forced return of individuals to countries where they could face persecution or serious harm. It is intended as a universal principle that should apply to everyone without exception. However, in practice, it is not always upheld because not all countries have implemented proper categorization.
There are also regional agreements that offer protections. For example, the OAU Convention addresses refugee issues in Africa, while the Cartagena Declaration serves a similar role in Latin America. These agreements extend legal protections even in areas where countries may not have signed other global treaties.
Recent EU Migration Policy Developments
Encouragingly, the European Union has launched initiatives like the Common European Asylum System to standardize asylum policies across member states. Notably, the Council of the EU recently adopted the Pact on Migration and Asylum, a major step forward. Key components of the Pact include uniform migration laws, simplified asylum processes, and increased solidarity through the redistribution of asylum applications, which eases the pressure on countries with high migrant inflows. These actions aim to foster stronger cooperation and promote a more humane approach to migration management.
(Photo by Pascal Bullan on Unsplash)
This article was written by Héléna Clinckart, edited by John Shotton. Featured Photo by Ahmed on Unsplash
