The detention of migrants and asylum seekers is drawing the attention and resources of entities from all facets of contemporary society and resulting in the creation of new forms of collaboration between state and non-state actors. However, this type of detention has become the target of criticism from experts, who argue that those involved in the treatment of detainees fail to abide by established international norms. As much of the international community focuses on developing ways to ‘govern’ migration, the issue of the legality of migration detention remains largely overlooked.
What are the key norms on the treatment of detainees? And how can academics and practitioners measure adherence to these evolving norms? To address these questions, the Graduate Institute’s Program for the Study of Global Migration proposes a multi-phase initiative that combines legal analysis with social scientific data generating methods to develop a method for measuring the construction and state adherence to key norms.
Migration-related detention is a widespread, yet partially documented phenomenon. While detention is one of the main tools used by states to control access to their territory and to manage their borders, the international normative framework is plagued by recurrent ambiguities and misunderstandings. At the same time, detention of migrants has increasingly become the target of criticism from experts and advocates, who charge that those involved in the treatment of detainees consistently fail to abide by established international norms.
Against such a background, the tasks carried out by the SNIS project have been threefold. The first objective of the SNIS research project has been to identify, define and classify the myriad of international rules governing the detention of migrants. The overall result of our endeavor is to provide a comprehensive and well-accepted legal framework able to guide the different actors involved in this controversial field. The second objective of the research has been then to provide tools for assessing state behavior regarding migration detention. With this objective in mind the research team has identified and developed indicators for recording and measuring states’ commitments to international legal norms, as well as implementation efforts at the domestic level. The third and last task has been to collect the two above mentioned results into an online database making information on detention practices available to any person interested in the matter. In other words, the idea was to define indicators helping to assess the level(s) of State compliance to international norms applicable to migration detention, with one related objective of making a comparison of detention practices possible in the light of different defined variables.
Many liberal democracies betray a noticeable discomfort when it comes to public scrutiny of immigration detention, neglecting to release comprehensive statistics about it, cloaking detention practices in misleading names and phrases, and carefully choosing which activities they define as deprivation of liberty. On the other hand, these same countries have laboured to expand their detention activities and to encourage their neighbours to do the same. What explains this simultaneous reticence towards and embrace of immigration detention? This Global Detention Project working paper argues that a largely unrecognized variable influencing the evolution of immigration detention has been the promotion of some key human rights norms, which has helped spur states to adopt new institutions dedicated to this practice while at the same time prompting them to shift the burden of global migration to countries on the periphery of the international system.
This working paper focuses on a specific facet of crimmigration — the incorporation of measures more closely related to criminal justice into immigration proceedings and the “consciously asymmetric form” of this incorporation, as described by S. Legomsky. The paper tests Legomsky’s observation that “immigration law has been absorbing the theories, methods, perceptions, and priorities associated with criminal enforcement while explicitly rejecting the procedural ingredients of criminal adjudication.” In other words, as this paper contends, while it appears to be the case that the EU detention regime, like detention regimes elsewhere in the world, has in recent years increasingly taken on the trappings of some aspects of criminal justice systems, it is a severely incomplete appropriation, a fact that has important repercussions for both the wellbeing of detainees and our understanding of the evolution of detention in the EU sphere.
Discursive strategies used to describe people moving across borders can have consequences on their well-being, including limiting their access to legal procedures. This Global Detention Project working paper points to an apparent paradox in these strategies: While the language used to describe migrants and asylum-seekers is often euphemistic (or dysphemistic), tending to dehumanise them, language used to characterize their treatment in custody appears aimed at shielding detention from scrutiny. The paper suggests that in the field of immigration detention, the role and impact of misleading language on policy and perception appears to be quite significant and merits more attention from scholars and advocates.
The project “International Law and Migration Detention: Coding State Adherence to Norms” was launched in February 2011 with the objective of developing a methodology for assessing whether states adhere to international legal norms relevant to the burgeoning global phenomenon of immigration detention. A project of the Graduate Institute’s Global Migration Centre (formerly the Programme for the Study of Global Migration) that builds on previous work undertaken by the Global Detention Project, the SNIS-funded research initiative has had several noteworthy results, including:
(1) The elaboration of an overarching normative framework for immigration detention that covers all binding norms – be they universal or regional;
(2) The review of universal and regional soft law instruments;
(3) The development of indicators to assess the degree to which countries adhere to these norms;
(4) The in-depth development of an online database documenting the phenomenon of immigration-related detention that serves the dual goals of publicizing rigorously constructed data on national detention regimes and providing a central organizing framework for information and analysis on detention produced by relevant actors across the globe;
(5) The establishment of a network of legal advocates and rights actors to assist in developing an analytical framework for assessing detention policies and producing data necessary for assessing state performance;
(6) The publication of a series of reports building on the work of the project that explore various dimensions of the detention phenomenon.
Graduate Institute Geneva
Graduate Institute Geneva
United Nations High Commissioner for Human Rights
Graduate Institute Geneva
Martin David Jones
Migration Policy Institute, Washington DC
International Committee of the Red Cross