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How History Separated Refugee and Migrant Regimes: In Search of Their Institutional Origins
* D.Phil (International Relations, Oxon), currently an Associate Professor at the University of Kyushu, Japan. I am extremely grateful to Dr Daniel Warner at the Graduate Institute of International Studies (HEI) and Professor Adam Roberts at Oxford University for giving me an opportunity to conduct research in Geneva. In addition, Mr Reno Becci, archivist at the ILO, painstakingly looked for documents about the Naples Conference of 1951 for my research and found piles buried deep inside the archives which had not been seen by anyone before. I am very much obliged to him for showing them to me even before they were classified
The current international framework for protecting migrants and refugees is often criticised as being fragmentary, with a multiplicity of categories of persons, and of organizations for addressing their problems. Many scholars have called for a new international regime and a more unified institutional arrangement, which would provide for the orderly movement of people. The basic weakness of the current regimes derives from the artificial distinction between ‘refugees’ and ‘migrants’ created after the Second World War. The article explores the institutional origins of the system and determines the major causes of the different treatment of refugees and migrants.
The paper argues the following: First, the system, which might be in need of reconstruction in order to suit today's world of high mobility and diversified patterns of international movement, resulted from the battle between the United States and the international institutions (the ILO and UN). The conflict was over how to deal with the surplus populations in Europe. The US favoured an institution with specifically designed functions based on inter-governmental negotiations. The ILO-UN plan recommended international co-operation under the leadership of a single international organization. After the conferences in Naples and Brussels in 1951, the US plan was accepted and the Provisional Intergovernmental Committee for the Movement of Migrants from Europe (now renamed the International Organization for Migration) was created. Second, the distinction between migrants and refugees also emerged as a way of helping the restructuring and dissolution of the pre-war refugee protection organisations. Two parameters for the division — forced movement and violation of civil and political rights — appeared inadvertently rather than deliberately. From the perspective of the US government, the main goal was to limit international influence over national migration and refugee policies as much as possible.
1 Ghosh, Bismal, ‘Movements of People: The Search for a New International Regime’, in The Commission on Global Governance (ed.), Issues in Global Governance, (London: Kluwer Law International, 1995), ch. 17.
2 IOM doc. MCB/9, Migration Conference, Brussels, 6 Dec. 1951. ‘Resolution to Establish a Provisional Intergovernmental Committee for the Movement of Migrants from Europe’ (adopted at the 13th Meeting, 5 Dec. 1951). For the history of the IOM, see, Ducasse-Rogier, Marianne, The International Organization for Migration 1951–2001 (Geneva: IOM, 2001).
3 In this paper ‘regime’ is defined in line with a constructivist branch of international relations. A regime here means ‘governing arrangements constructed by states to coordinate their expectations and organize aspects of international behaviour in various issue areas. They thus comprise a normative elements, state practice, and organizational role’. Kratochwil, Friedrich, and John Ruggie, ‘International Organization: A State of the Art on an Art of the State’, (1986) 40/4 International Organization, 759.
4 Numerous articles exist on the definition of ‘refugees’ under IRO and previous refugee protection organisations. See, e.g., Hathaway, James C., ‘A Reconsideration of the Underlying Premise of Refugee Law’, (1990) 31/3, Harvard International Law Journal, esp. 139–43. Marrus explicitly labelled the IRO as ‘the instrument of the Western powers, chiefly the United States...’. Marrus, Michael R., The Unwanted: European Refugees from the First World War through the Cold War (Philadelphia: Temple University Press, 2002), 343.
5 According to Professor Hathaway's explanation, it was not that other persons were less at risk, but was rather considered that those whose political/civil rights were affected were less likely to seek remedy within the state and thus need international protection. Hathaway, James C., The Law of Refugee Status (Markham: Butterworths, 1991), chs. 4 & 5.
6 According to the US proposal which led to the creation of PICMME, there was still a surplus population in Western Europe in spite of the increase in employment thanks to the general improvement in economic conditions. Its main objective therefore would be to ‘provide,..., an efficient mechanism for the movement of those substantial numbers from the overall migration population unable to move in the absence of the proposed arrangements’. The line of argument showed that their job was to offer means of transportation to those who wished to go abroad for employment. IOM doc. MCB/3, Migration Conference, Brussels, 24 Nov. 1951, ‘A Plan to Facilitate the Movement of Surplus Populations from Countries of Western Europe and Greece to Countries Affording Resettlement Opportunities Overseas’ (submitted by the US delegation).
7 Taft, Donald R., and Richard Robbins, International Migrations: The Immigrant in the Modern World (New York: The Ronald Press Co., 1955), ch. 11, 236.
8 E.g., see, Torpey, John, The Invention of the Passport: Surveillance, Citizenship and the State, (Cambridge: Cambridge University Press, 2000).
9 Economic stagnation during the inter-war period was another major reason for the reduction of international migration. Isaac, Julius, ‘International Migration and European Population Trends’, (1952) vol. LXVI International Labour Review, 188–9. Castles, Stephen, and Mark J. Miller, The Age of Migration, (London: Macmillan, 2nd edn., 1998), 62–4.
10 Numerous works analyse the refugee protection regimes before the Second World War. E.g., see, Stoessinger, John George, The Refugee and the World Community, (Minneapolis: the University of Minnesota Press, 1956), Part I, Sjöberg, Tommie, The Powers and the Persecuted: the Refugee Problem and the Intergovernmental Committee on Refugees, (Lund: Lund University Press, 1991), ch. 1, and Skran, Claudena M., Refugees in Inter-War Europe. The Emergence of a Regime, (Oxford: Clarendon Press, 1995).
11 For a brief summary of the history of ILO activities with regard to international assistance to migration, see, ILO doc. MIG/1009/2/406. ‘Present State of Migrations’, Migration Conference, Naples 1951.
12 Professor Goodwin-Gill termed this as a ‘group or category approach’. Goodwin-Gill, Guy S., The Refugee in International Law (Oxford: Clarendon, 1998), 4.
13 Although Metzger is right to point out the achievements of the LN in 1920s such as the creation of a special certificate of identity for Russian refugees, the so-called ‘Nansen passport’, it is difficult to deny, e.g., that the LN was helpless against Nazi persecutions and expulsions. Metzger, Barbara H.M., ‘The League of Nations and Refugees: the Humanitarian Legacy of Fridtjof Nansen’ in The League of Nations 1920–1946 (Geneva: United Nations, 1996), ch. 14.
14 E.g., see, Stoessinger, n. 10 above, 39–41.
15 During the discussion prior to the creation of UNHCR, the US delegate tellingly stated that the US shares the responsibility for refugee protection ‘to the extent that [their] present immigration laws permit’. ‘Refugee Problem — Resettlement’, Refugee Department, Foreign Office, 24 May 1946, in M. L. Dockrill, (ed.), British Documents on Foreign Affairs, Part IV, ser. M, International Organizations, Commonwealth Affairs and General, (University Publications of America, 2000), 97.
16 For the history of the ILO's involvement with migration problems, see, e.g., ILO doc. MIG 1/61/3, 31 Dec. 1942.
17 Declaration concerning the Aims and Purposes of the International Labour Organization, 1944, III (c).
18 Issac, n. 9 above, 185–206.
19 The outbreak of the Second World War meant it did not take place until 1946.
20 International Labour Office, Minutes of the 7th Sitting on 9 Mar. 1951, Statement by the Director General on Migration, Minutes of the 114th Session of the Governing Body, Geneva, 6–10 Mar. 1951.
21 ILO, ‘Industrial and Labour Information, First Meeting of the Permanent Migration Committee’, (1947) LV International Labour Review, 99.
22 For details, see, ILO, (1948) XXI Official Bulletin, 138–9, for the 2nd conference in 1948, and Minutes of the 108th Session of the Governing Body, 4–8 Mar. 1949, 104–14.
23 ILO doc., Minutes of the 103rd Session of the Governing Body, Appendix XX, Twentieth Item on the Agenda, Report of the Director-General, 12–15 Dec. 1947.
24 ILO, ‘Note concerning the Co-ordination of International Responsibility in the Field of Migration, Agreed on the Secretariat Level between the United Nations and the International Labour Organization’, (1947) 30 Official Bulletin, 417–20.
27 For details, see, ibid., 419.
28 For the debate that led to the creation of the working group, see, ILO Archives, UN doc. 50/1/1, ‘United Nations Technical Working Group on Migration’.
29 The ILO archival series of UN 50/1 cover all the annual meetings of the working group.
30 ILO doc. CPM/I/45/1950, Preliminary Migration Conference, ‘Extemporaneous Address’ by Mr David A. Morse, Director-General of the International Labour Office.
31 ILO, (1950) 4/1 Industry and Labour, 34–47.
33 National Archives of the UK (NA), FO 371/88832. Tripartite Talks — items 2(b)(II) on 3 May 1950. ‘French Delegation's Proposal regarding European Emigration’.
34 For the use of this fund, see, ILO doc. GB 115-JMPC-101-1, 17 May 1951.
35 Maga, Timothy P., America, France and the European Refugee Problem, 1933–1947 (New York: Garland, 1985), chs. II, IV, and V.
36 For details of refugees from the Nazi regime, see, Marrus, n. 4 above, ch. 4.
37 Ibid., 161–6. Marrus argued that ‘a weak and low-keyed High Commission was very much to the taste of its League of Nations sponsors’ (p 163).
38 See, Sjöberg, n. 10 above, ch. III.
39 Estorick, Eric, ‘The Evian Conference and the Intergovernmental Committee’ (1939) 203 the Annals of American Academy of Political and Social Science, 136–41, and Part I, Sjöberg, n. 10 above, ch. 2.
40 Citation from Estorick, ibid., 138.
41 Sjöberg, n. 10 above, ch. 3.
43 Penkower, Monthy N., ‘The Bermuda Conference and its Aftermath: An Allied Quest for "Refuge" during the Holocaust’, (1981) Prologue, 145–74.
44 The first Director of IGCR was George Rublee, a close friend of Roosevelt. The UNRRA was first headed by Herbert Lehman, former governor of New York, succeeded by Fiorello La Guardia, former mayor of New York City.
45 A ‘DP’ was defined as a person who had been deported by official or para-official action. Yet, in reality, the UNRRA treated them as one for all practical purposes. See, Stoessinger, n. 10 above, 49–55.
46 Sjöberg, n. 10 above, ch. V.
47 Stoessinger, n. 10 above, 59.
49 Holborn, Louise, The International Refugee Organization. A Specialized Agency of the United Nations: Its History and Work, 1946–1952, (London: Oxford University Press, 1956).
50 E.g., see, Hathaway, ‘A Reconsideration’, n. 4 above, 141–3.
51 Hathaway, The Law of Refugee Status, n. 5 above, 7.
52 The US and the UK contributions to the administrative budget were 40% and 11%, respectively. Holborn, n. 49 above, 103 and ch. VI.
53 According to the work by Stoessinger, only 5% of the total number of DPs registered with the IRO were repatriated. Stoessinger, n. 10 above, 111.
55 IRO doc. GC/257/Rev.1, 8 Nov. 1951.
56 Loescher, Gil, and John A. Scanlan, Calculated Kindness: Refugees and America's Half-open Door 1945-Present, (New York: The Free Press, 1986), 40–2.
57 For background to the establishment of the UNHCR, see, Loescher, Gil, The UNHCR and World Politics, (Oxford: Oxford University Press, 2001), chs. 2 and 3.
58 NA, FO/371/95936. ‘A letter to L. A. Scope, UN (Economic and Social) Department, from R. T. D. Ledward’, 27 July 1951.
59 A list of delegates can be found, ILO doc. MIG/1009/2/360. ILO, Migration Conference, Naples, ‘Revised List of Delegations’.
60 International Labour Office, Minutes of the 114th Session of the Governing Body, 6–10 Mar. 1951, Minutes of the 7th Sitting on 9 Mar. 1951, ‘Statement by the Director-General on Migration’.
61 ILO doc. MIG 1009/2/411/1. Migration Conference, Naples 1951, ‘UN Report on Methods of International Financing of European Emigration’. 513th meeting of ECOSOC, Official Records, 22 Aug. 1951 (Statement by the Director-General of the ILO, Mr Morse).
62 For a list of working papers for the conference, see, ILO docs. MIG/1009/2/301. A plan for establishment of ILO migration administration is discussed in a document number, C.Mig/I/6/1951, and is found in MIG/1009/2/403.
64 For the institutional plan, see a chart of MIG 1009/2. ‘ILO Migration Administration: Organisation and Administrative Plan’.
67 NA., FO/371/95904. ‘Surplus Population and Migration in Europe: Formation of Policy’, 23 July 1951.
68 NA., FO/371/94363. ‘A letter to the UN (Economic and Social) Department from B. A. B. Burrows’, 27 Sept. 1951.
69 ILO doc. MIG/1009/2/102/1. ‘Stenographic Records of the Steering Committee’, 2nd Sitting on 3 Oct. 1951.
72 ILO doc. MIG/1009/2/102/1. ‘Stenographic Record’, Plenary Sittings, 4th Sitting, 4 Oct. 1951.
73 Ibid., 9th plenary sittings, 13 Oct. 1951.
74 The Director-General, Morse, admitted at the Governing Body Session subsequent to the Naples Conference that it had been a disappointment, but continued, ‘neither he nor the staff of the Office were in any way discouraged by what had happened there. The ILO plan had not been defeated by Naples; it had simply not been considered’. He then concluded that ‘the ILO had only just begun its battle’. International Labour Office, Minutes of the 117th Session of the Governing Body, Minutes of the 9th Session, 23 Nov. 1951.
75 Mutual Security Act, Public Law 249 of 31 Oct. 1951.
76 Loescher and Scanlan, n. 56 above, 42.
77 For participants in the Brussels Conference, IOM doc. MCB/12. ‘Report on the Migration Conference’, Migration Conference, Brussels, Dec. 1951.
78 IOM doc. MCB/3, Migration Conference, Brussels, Dec. 1951.
79 IOM doc. MCB/SR/2. Migration Conference, Brussels. 26 Nov. 1951.
82 ILO doc. IGO/022/1000/2, MCB/9. Migration Conference, Brussels. 6 Dec. 1951.
83 IOM doc. MCB/9. ‘Resolution to establish a Provisional Intergovernmental Committee for the Movement of Migrants from Europe’ 13th Meeting, Migration Conference, Brussels, 5 Dec. 1951.
84 Loescher, n. 57 above, 59, quotation from George Warren, The Development of United States Participation in Inter-Governmental Efforts to Resolve Refugee Problems, Mimeo, 1967, 149.
85 International Labour Office, Minutes of the 117th Session of the Governing Body, Geneva, 20–23 Nov. 1951 (the Director-General).
86 IOM doc. PIC/SR/15, 21 Feb. 1952. ‘Provisional Intergovernmental Committee for the Movement of Migrants from Europe’, Executive Committee, 2nd Session, (Mr Rochefort, France).
87 E.g., Dr Van Heuven Goedhardt, UN High Commissioner for Refugees, was already voicing his concerns over problems of co-ordination and duplication of effort at the Brussels Conference. IOM doc. MCB/SR/7/Annex 2. ‘Statement made by Dr Van Heuven Goedhardt’. At the outset of PICMME, there were frequent meetings with ILO to discuss the respective fields of operation of the two organisations. With regard to practical working relations between two organisations, however, the ILO delegate at the 3rd session of PICMME pointed out that PICMME is ‘increasingly undertaking operations which fall outside the simple function of transport’ and ‘they have resources which the ILO does not possess’. Although the ILO delegate stated the organisation did not wish to debar PICMME's operation, the statement above reflected the mood of the ILO towards PICMME. ILO doc. IGO/022/1000/3, ‘Brief for Mr Metall’. Third Session of PICMME, 10 June 1952.
88 Loescher and Scanlan, n. 56 above.
89 The UN began to involve with the issues regarding the protection of migrants again in the early 1970s. Later, in 1990, it succeeded in establishing the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
90 According to the 5th session, 77 626 migrants moved with the help from PICMME (later, renamed the International Committee for European Migration in Oct. 1952) during the first 11 months of operation in 1952. IOM doc. MC/25, 16–24 Apr. 1953. ‘Draft Report of the 5th Session of the Intergovernmental Committee for European Migration’, 8.
91 IOM doc. MCB/3, 24 Nov. 1951. ‘A Plan to Facilitate the Movement of Surplus Populations from Countries of Western Europe and Greece to Countries Affording Resettlement Opportunities Overseas’, Plenary Session, Migration Conference, Brussels. According to the plan submitted by ILO at Naples, on the other hand, it was expected that 200 000 migrants would be moved for the first year only. ILO doc. MIG/109/2/403, Oct. 1951. ‘Plan for Establishment of ILO Migration Administration’, Migration Conference, Naples.
92 Just before the Naples Conference, the ILO sent out the questionnaire on the best form of international cooperation to further European migration to 44 countries. The analysis of the replies concluded ‘noncommittal or disinterested or, to some degree, negative’ responses from most of the governments. It was clear by then that neither the US nor the UK government were in favour of establishing a new organisation. Also, tellingly, it pointed out that there was a general agreement with the ILO giving the greatest possible assistance, but that ‘no country appears interested to seek direct assistance from the ILO’. ILO doc. MIG/1009/2, 25 June 1951.
93 E.g., see, Bigo, Didier, ‘Migration and Security’ in Virginie Guiraudon and Christian Joppke (eds.), Controlling a New Migration World (London: Routledge, 2001), ch. 5. Bigo argued that specialists on security issues constructed a ‘threat’ caused by migration, especially illegal migration, resulting in tightened migration control.