The Role of Departure States in Combating Irregular Emigration in International Law: An Historical Perspective

Abstract

This article examines the evolution over time of attempts to establish an international law principle that States have a legal responsibility, at least under certain circumstances, to combat irregular emigration, defined as the exit of individuals who would be arriving at their destination in a manner that is not compliant with the destination country’s immigration laws. Through examination of contemporaneous statements and the travaux préparatoires relating to six separate negotiations, light is shed on the attempts to develop such a norm since the beginning of the 20th century, along with the evolving set of legal and ethical justifications that were used in these processes. The different practical and principled objections employed by States and civil society actors to oppose the development of such a legal norm are also examined. The article concludes that this historical perspective challenges current perceptions that home State controls are of recent origin, and that in fact international migration law is inherently progressive.