中国国际移民法新发展之反思
Reflection on the Latest Progress in Chinese Legislation on International Migration
2014/10/30 10:41:40 点击率[1364] 评论[0]
【法宝引证码】
    【学科类别】国际私法
    【出处】FRONTIERS OF LAW IN CHINA
    【写作时间】2013年
    【中文关键字】出入境管理法;国际移民管理;人口贩运;难民保护
    【英文关键字】exit-entry administration;international migration management;human trafficking;refugee protection
    【全文】

       Introduction
     
        On June 30, 2012, after almost ten years of survey, research, drafting, reviews, and revisions, the Exit-Entry Administration Law of the P.R.C. (hereinafter, the “Law”) was enacted by the Standing Committee of the National People's Congress of the P.R.C., which has just become effective as of 1 July 2013 and replaced both the Law of the P.R.C. on Control of the Entry and Exit of Aliens and the Law of the P.R.C. on Control of the Exit and Entry of Citizens (1985)。 Since its entry into force, it has served as a key legal instrument in China for regulating international migration of aliens and Chinese citizens, including residents in the mainland of China, Hong Kong SAR, Macau SAR, and Taiwan regions.[1]
     
        By incorporating reasonable ingredients of the existing laws and regulations on exit and entry control and developing a lot of new contents,[2] the new law has become the most systematic to date on international migration in China. Yet its deficits are also evident, which will bring about great impacts on the issues of international migration. In what follows, the process in the Exit-Entry Administration Law of the P.R.C as well as its deficits will be analyzed before expounding its potential impacts on international migration.
     
        I. New Features and Contents of the Law
     
        There have been few changes in the existing Chinese legislation on exit and entry administration since 1980s. But the situations for exit-entry administration in China have gone through great changes. According to the Bureau of Exit and Entry Administration of the Ministry of Public Security of P.R.C, there were 431,000,000 people who left or entered the Mainland of China through the inspection of the Chinese Exit and Entry Frontier Inspection Stations in 2012, among whom 376,000,000 were Chinese residents and 54,351,500 were aliens.[3] Among the aliens, 11,629,000, 107,700, 1,432,800, 1,590,000, and 189,600 entered the Mainland of China respectively for sight-seeing, visiting relatives, attending conferences or business events, and working as well as studying.[4] Moreover, 2,614 people were found entering or leaving the Mainland of China illegally while 47,100 people were found in violation of the existing laws on exit and entry control by competent authorities in 2012.[5] According to the Sixth National Census in 2010 by the National Bureau of Statistics of China, there were 593,832 aliens, who had resided in the Mainland of China for over three months or were bound to reside in the Mainland of China for over three months.[6] Therefore, Chinese government is burdened with the increasing tasks of regulating the flow of Chinese citizens and aliens across Chinese borders. The existing laws on exit and entry control cannot serve the purpose well, which is in great need of a more systematic law. The Exit-Entry Administration Law was therefore enacted, showing many new features.
     
        A. Enhanced Administration of Exit and Entry
     
        As an administrative law, the Law tightens the administration and control of exit and entry. Article 1 of the Law specifies its three legislative purposes: The first is to standardize exit-entry administration; the second is to safeguard sovereignty, security, and social order of the P.R.C.; the third is to promote international exchanges and China's openness to the outside world. Clearly, the first legislative purpose is to enhance the control of transnational flows of personnel. There are quite a few theoretical and practical rationales for it. In modern international law, both population and territory are two of the essential components of a sovereign state.[7] And one of the main roles and powers of a modern state involves citizenship, and the capacity to exclude outsiders, standing in opposition to the natural movement of individuals.[8] Therefore, the administration concerning immigrants is one of the key channels by which sovereign states exercise their sovereignty. As a newly-founded state whose sovereignty had ever been incomplete for over a century and which has just been opened to the outside world for decades of years, it is not surprising that China has been considerably sensitive to its sovereignty and attaching great importance to its national security and social order. In the post-9/11 era when states tend to put increasingly more stress on national security as a response to non-traditional security threats, China inevitably attaches greater importance to its border security and social stability than before. The past decade, during which the new law has been drafted, reviewed, and revised for many times, has witnessed expanding and increasingly serious non-traditional security threats, such as terrorism, illegal migration, human trafficking, drug trafficking, arms trafficking, and other transnational organized crimes, which plague the world including China. Therefore, it is imperative to establish standardized and enhanced administration of transnational activities. Indeed, many parts of the Law represent China's efforts to strengthen the administration and control of exit and entry.
     
        1. More Power Entrusted to Competent Authorities. — Firstly, the authorities of competent central departments are clarified further and more efficient. The administration of exit and entry involves many central departments supposed to cooperate and coordinate with each other closely in China. The Law further clarifies respective responsibilities shared by the Ministry of Public Security, Ministry of Foreign Affairs, Ministry of Human Resources and Social Security, State Administration of Foreign Experts Affairs, and Ministry of Education, for the exit-entry administration.[9] It is worth noting that Article 5 stipulates that the State will establish a uniform exit-entry information platform. This will gradually solve the problem that the existing five exit-entry administration information systems are not connected with each other to share information,[10] thus creating an effective technological instrument for exit-entry administration.
     
        Secondly, independent enforcement competence of the exit-entry administration agencies in local public security organs has been established by the Law. It is worth mentioning that for the first time the status as competent authorities for administrating exit and entry has been granted to the exit-entry administration agencies in the public security organs of the local governments at and above county level, which are authorized to accept applications of aliens for entry, stay, and residence,[11] to implement the administration of stay and residence of aliens,[12] and are entitled to impose a warning or a fine below CNY 5,000.[13] After all, it was only the public security organs of local governments at and above county level that are responsible for the administration of the exit and entry, stay, and residence of aliens, with the exit-entry administration agencies having no independent enforcement competence. That is to say, now the exit-entry administration agencies in the public security organs become independent enforcement authorities for exit-entry administration, which will improve their administration level and enforcement efficiency as well as service level.
     
        Another aspect that deserves noting is that the capacity of the exit-entry frontier inspection organs has been expanded. The legal status of the exit-entry frontier inspection organs as functional authorities has been established in the Law which is a national law adopted by the National People's Congress, which has replaced the administrative act adopted by the State Council.[14] Paragraph 2 of Article 4 of the Law provides that exit-entry frontier inspection organs are responsible for implementing exit-entry frontier inspection. Furthermore, the capacity of the exit-entry frontier inspection organs are expanded to prohibit the following aliens from entering China: aliens with serious mental disorders or infectious diseases which might endanger public health seriously; aliens suspected of engaging in illegal or criminal activities in China; aliens suspected of engaging in activities inconsistent with their visa types in China; aliens who practiced fraud or failed to afford the required cost for staying in China during the visa application.[15]All these new provisions authorize the exit-entry frontier inspection organs sufficient discretionary power to prohibit those aliens who might endanger public health, national security, public security, or public welfare, from entering China.
     
        2. A More Legitimate and Effective Legal Instrument on Control. — On the one hand, the existing laws on exit-entry administration have been systematized into the Law. The existing laws on exit-entry administration consist of several separate instruments which regulate the exit and entry of citizens in the mainland of China, aliens, residents in Hong Kong SAR and Macau SAR, and residents in Taiwan regions respectively.[16] They are scattered and even contradict with each other in some way,[17] thus rendering it possible to bring about differentiated treatment during exit-entry administration as well as difficulties for administration. In an era of economic globalization, it might not be congruent with the widely accepted principles of equality before the Law, and national treatment.[18] Thus, the new law has systematized some elements of the existing legislations on exit-entry administration applicable to the exit from, and entry into the Mainland of China of all persons.
     
        On the other hand, the inconsistence of the existing laws on exit-entry administration with other laws, such as Law of the P.R.C. on Administrative Penalty, Administrative Licensing Law of the P.R.C., Administrative Enforcement Law of the P.R.C., has been abolished by the Law. For example, the remedies for administrative penalties has been improved and extended to all kinds of administrative penalties. According to the existing laws on exit-entry administration, citizens or aliens who do not accept the penalties of fine or detention, can only appeal to public security organs at higher levels, or to file an administrative lawsuit at court.[19] But in the Law, there is no provision on remedies for administrative penalties. This means that citizens or aliens have recourse to the Administrative Review Law of the P.R.C., i.e. they can choose whether to appeal to public security organs at a higher level and continue to file a lawsuit if they do not accept the decisions of the review, or directly file a lawsuit. So they have more channels on remedies for administrative penalties. Moreover, they can appeal to administrative review or litigation against any administrative penalties, such as being ordered to leave China within a specific period of time and confiscation of illegal gains. An exception is deportation, since it is final and can only be decided by the Ministry of Public Security. Thus, aliens or citizens are offered more chances for remedies for all the administrative penalties in association with exit-entry administration. Therefore, with the enhanced consistence with relevant laws mentioned above, the legitimacy of the existing laws has been strengthened further by the Law.[20]
     
        Furthermore, the circumstances and procedures for law enforcement have been elaborated in great detail. In particular, the compulsory measures and penalties that competent authorities are authorized to determine are clarified. The circumstances for measures of investigation and repatriation, such as on-the-spot interrogation, continued interrogation, detention for investigation, restriction of activity scope, repatriation, are specified in the Law.[21] Besides, the circumstances, under which administrative penalties are to be imposed and the categories of penalties to be imposed, are detailed.[22] Thus, concerned authorities will be able to administrate transnational activities more effectively.
     
        B. More Emphasis on Serving Legal Migration
     
        As is indicated above, the third legislative purpose of the Law is to promote international exchanges. In the era of globalization,[23] cross-border flows of goods, services, money, and labor have reached unprecedented levels. This gives rise to an international community[24] and is made possible by modern technologies of communications and transportation. With the second largest economy in various aspects of society, China is trying to perfect its policy of reform and opening to the world, with a view to building a prosperous, democratic, civilized, and harmonious country as well as a harmonious world.[25] Exit-entry authorities administer the door for opening up to the outside world. Therefore, the new law would serve China's interactions with the outside world. Its commitment to improve government service is manifest in the following dimensions.
     
        1. Facilitation of the Entry and Exit of Regular Migrants. — First of all, the provisions facilitate visa issuance to legal migrants. As to Article 3 of the Law, the lawful rights and interests of aliens in the Chinese territory are to be protected by law. In addition to provisions on ordinary visas for the entry of aliens for purposes of work, study, family visit, tourism, business, a new category of visa for introduction of talents is written into the Law for the first time. This will help attract talents that China is in great need of. A relevant provision related to talents introduction provides that residence certificates may be granted to aliens who are professional talents, investors, or whose status of stay needs to be changed into residence for humanitarian or other reasons.[26] Furthermore, the circumstances under which aliens can apply for visas have been expanded.[27]
     
        Moreover, the scope of aliens who are not required to apply for visas, has been expanded to include aliens who hold connected tickets for international vessels, trains, as well as flights to a third country or region through China, and who stay in China for less than 24 hours without leaving the port, or stay in the specific areas approved by the State Council within the specified time period.[28] This will promote the building of international hub airports and the development of cruise economy by attracting more aliens to China for sight-seeing or business. And the scope of aliens who can apply for temporary entry to the exit-entry inspection organs has been expanded to include the aliens who are not required to apply for transit visas and those who need to enter China temporarily due to emergencies.[29]
     
        Secondly, the provisions on stay, residence, and permanent residence of aliens are expected to provide great convenience to legal aliens. The law has well specified the circumstances for issuing stay and residence certificates to aliens as well as application procedures with regard to extension of stay periods, residence periods, and replacing or reissuing of ordinary visas, residence or stay certificates. It bears noting that it is stipulated clearly for the first time that aliens who apply for status of refugees can stay in China in the period during which their status of refugees is to be identified. Specifically, during such a period, temporary identity certificates will be issued by the competent public security organs; and aliens who have been identified as refugees can reside in China with their refugee identity certificates issued by relevant public security organs.[30] Moreover, a particular section of provisions of the Law is devoted to permanent residence of aliens. As is stipulated by Article 47, those aliens who have made outstanding contributions to China's economic and social development can obtain permanent residence qualifications after their personal applications are submitted to and approved by the Ministry of Public Security. This allows for further gradual relaxation of the qualifications for applying for permanent residence, which will help attract international talents and investors.
     
        Thirdly, the provisions on interrogation and repatriation help protect the lawful rights and interests of relevant parties. As mentioned above, the conditions and procedures for conducting interrogation and repatriation are specified rigorously in the Law. It is both a statutory authorization to the relevant authorities and a legal tool which enables migrants to defend their legal rights and interests. More importantly, for the first time the Law provides for administrative remedies, which are related to interrogation and compulsory measures. As is stipulated by Article 64 of the Law, aliens or others who refuse to accept the continued interrogation, detention for investigation, restriction of activity scope, and repatriation imposed by the Law, can apply for administrative review, but the decisions made after the administrative review are definitive. As a result, legal aliens will be protected from interrogation and repatriation that may violate their legal rights and interests.
     
        The provisions on non-application of detention for investigation are worth mentioning. According to Article 61 of the Law, detention for investigation should not be imposed upon the following persons: the seriously diseased, the pregnant, those who are nursing infants, those who are under 16 full years or above 70 full years, and those who do not meet the condition for application of detention for investigation. These humanitarian provisions are compatible with international practice and other domestic laws, such as the Public Order Administration Punishment Law of the P.R.C.[31]
     
        2. Facilitation of the Entry and Exit of Overseas Chinese. — It is estimated that there are about 50,000,000 overseas Chinese who reside permanently abroad all over the world.[32] Overseas Chinese may constitute a significant part of investors and professional talents who may contribute to China's reform and opening to the outside world. Some of them may choose to return to China for permanent residence. In order to facilitate their application for returning to China, it is provided for the first time that before entry they cannot only apply to the Chinese embassies or consulates abroad or other agencies abroad authorized by the Ministry of Foreign Affairs, but also apply themselves or via their domestic relatives to the agencies of overseas Chinese affairs in local governments at or above the county level in the place where they intend to reside.[33] In order to solve the problem that overseas Chinese may not use their passports as their statutory identity certificates which may be required for conducting business or other activities in China, it is provided for the first time that overseas Chinese can use their passports as their identity certificates in China.[34] Therefore, these provisions will facilitate the application of overseas Chinese for permanent residence in China.
     
        C. Tightened Control of Illegal Migration
     
        With the rapid increase of international migrants estimated at 200,000,000,[35] illegal migration has become a serious issue of global concerns, with an estimated total of 50,000,000 irregular migrants[36] and about one third of all migrations from developing countries being irregular.[37] Issues of illegal entry, residence, and work of aliens, are causing increasingly serious problems in China. It has been reported that in 2011 over 20,000 illegal aliens were identified by the exit and entry administration agencies of public security organs all over China, with about eighty percent of them engaged in illegal works.[38] As illegal migration may impinge on national security, national welfare system, or even national culture,[39] and usually involve transnational organized crime, such as migrant smuggling, human trafficking, China's new Exit-Entry Administration Law is intended to serve the purpose of safeguarding China's sovereignty, security, and social order.
     
        Firstly, strict visa regulations are stipulated in the Law. It is provided for the first time that Chinese organizations or individuals should be responsible for the authenticity of invitation letters that they offer to visa applicants, and should shoulder relevant legal responsibilities.[40] It is added to the provisions on port visa issuance that a visa issued by a port visa agency is only valid for single entry with a period of stay for less than 30 days. Moreover, for the first time the circumstances under which visas should not be issued are clarified. It is provided that visas should not be issued to aliens who have been deported or repatriated as a penalty or compulsory measure until the expiry of the period during which their reentry is prohibited. This can effectively prevent illegal reentry or recommitment of crimes by aliens.[41] Moreover, the Law authorizes the Ministry of Public Security and Ministry of Foreign Affairs to collect fingerprints and other biometric data of international migrants when necessary.[42] All these provisions will guarantee that aliens meeting the legal requirements obtain the corresponding visas and that illegal entry of aliens will be prevented by strict visa regulations.
     
        Secondly, the Law provides detailed regulations of the entry, stay and residence of aliens. As is expounded above, the purview of the exit-entry frontier inspection organs are expanded in order to prohibit the following aliens from entering China: aliens suspected of engaging in illegal or criminal activities in China; aliens who suspected of engaging in activities inconsistent with their visa types in China; and aliens who practice fraud or cannot prove their ability to afford the required cost for staying in China during the visa application process.[43] These provisions may help prevent illegal working and crimes. Additionally, the Law draws distinctions between stay with visas, stay with stay certificates, and residence with residence certificates in terms of circumstances, procedures, permitted period of stay, and extension of the period of stay. And the circumstances for denying the issuance of residence certificates are detailed for the first time. Furthermore, supervision of the residence of aliens in China is enhanced by provisions on residence registry reported to the competent public security agencies by hotels, accommodators, or the aliens themselves.[44] And it is clearly provided that aliens are not allowed to engage in activities inconsistent with the causes for their stay or residence, and that they are required to leave China before the expiration of their specified period of stay or residence. Moreover, the conditions for canceling the permanent residence qualifications of aliens are clarified. Particularly, a fallback provision is added to include other circumstances under which it is not appropriate to allow certain aliens reside on a permanent basis. All these provisions will be instrumental in administrating transnational activities in general and helping reduce or eliminate illegal entry, stay or residence of aliens in particular.
     
        Thirdly, for the first time the Law requires that both work permits and work residence certificates are necessary for aliens to work in China. The Law also requires competent authorities to develop and adjust periodically the guidance lists with regard to the aliens working in China and to establish some regulations as to the part-time work of international students in China.[45] It is worth noting that the concept of and the circumstances for illegal working of aliens are also well specified in unprecedented details. Meanwhile, supervision of illegal working is enhanced by stipulating the responsibilities and strict liabilities of the employers. For example, it is stipulated that any organizations or individuals cannot employ aliens without the required work permits or residence certificates. Employers employing aliens and organizations enrolling international students are required to submit relevant information to local public security organs. Any individual or organization, who has noticed the illegal entry, stay, or working of aliens, are obliged to report it to public security organs.[46] Taken together, these provisions will serve as a strong legal basis for the state agencies to combat illegal working.
     
        Lastly, provisions on interrogation and repatriation as well as legal liabilities for violation of the Law are expected to guarantee effective investigation and punishment of illegal entry, residence, and work of aliens as well as relevant violations. The conditions for continued interrogation, restriction of activity scope, and repatriation, are elaborated in detail, which authorizes state authorities to take necessary measures for investigating and combating illegal migration.[47] Penalties expected to be imposed on illegal migrants due to illegal entry, residence, working, or other kinds of violations of the Law are heavier than they were in the previous laws. Meanwhile, those who offer aliens invitation letters or other application documents inconsistent with the Law, assist, accommodate, hide, recommend, or employ illegal migrants, will be subject to strict penalties as well. Also, according to Article 81 of the Law, aliens, who have been deported in accordance with the decision made by the Ministry of Public Security, will be denied reentry for ten years after the deportation. Such deprivation of reentry is also applicable to aliens who have been repatriated as a compulsory measure instead of a penalty since such aliens will not be allowed reentry within one to five years after the date of repatriation.[48] All these provisions will be instrumental for investigating and punishing illegal migration.
     
        II. Possible Deficits in the New Law
     
        Arguably, the Exit-Entry Administration Law is the most systematic and developed law on exit and entry administration in China up to now. As is analyzed above, it integrates the existing laws and regulations while making breakthroughs.[49] The old laws and regulations were developed in 1980s or 1990s and have seldom been revised ever since, despite of the changing international and domestic contexts. Therefore, the Law reflects new national identity and interests of China.[50] However, the Law is hardly perfect in light of the international treaties on international migration that China has endorsed.
     
        A. Lack of Provisions on Refugee Protection
     
        The first deficit of the Law is that it does not detail the circumstances, criteria and procedures concerning how to treat refugees, and it specifies no particular state authorities in charge of refugee affairs. China has ratified the Convention Relating to the Status of Refugees of 1951 (hereinafter, the “Convention”)[51] and the Protocol Relating to the Status of Refugees of 1967 (hereinafter, the “Protocol”)。[52] As the most important universal treaties for refugee protection, the Convention and the Protocol provides for definitions on refugees as well as contracting states' obligations for protecting the rights and interests of refugees, including non-refoulement and non-penalties for illegal entry or presence of refugees.[53] It is also clearly specified in the UN Trafficking Protocol that the Protocol does not impinge on the rights, obligations, and responsibilities of states and individuals under international law including the 1951 Convention and the 1967 Protocol related to the status of refugees and the principle of non-refoulement contained therein.[54] Yet the Constitution of the P.R.C. and Law of the P.R.C. on Control of the Entry and Exit of Aliens only briefly mention that aliens seeking asylums for political reasons can be granted the right of asylees, and allowed to reside in China by the approval of competent authorities.[55] According to Article 46 of the Law, aliens applying for the status of refugees and aliens who have been identified as refugees may stay or reside in China during the screening for the status and after the identification as refugees, with temporary identity certificates or refugee identity certificates granted by public security organs. Although such a provision has represented a big progress in refugee protection, there are no provisions on the definition on refugees. That is, it remains unclear as to who can apply for the status of refugees, what kinds of applications are valid, to whom the applications should be submitted, the rights of refugees, what kinds of remedies may be offered to failed refugee applicants, and so on.
     
        The issue of refugees is increasingly important in China. Although China has ever granted refugee status to over 300,000 Indochinese refugees since the late 1970s,[56] there are no clear regulations or guidelines for granting refugee status. In practice, the UNHCR Regional Office in Beijing has access to individual refugees and asylum seekers and conducts refugee status determination according to the mandate of the UNHCR, which covers a wider scope of refugees than that covered by the Convention and the Protocol.[57] Yet the UNHCR has only identified and assisted 131 refugees and 154 asylum seekers in the Mainland of China up till now, who are permitted to remain temporarily in China while a durable solution, most of the time the resettlement to a third country, is being sought by the UNHCR.[58] Obviously, the efforts of providing protection to individual refugees rather than collective refugees, most of which are made by the UNHCR, cannot guarantee sufficient protection for all those in need of asylum or refugee protection in China. Whether the escape of thousands of Burmese into Yunnan Province of China due to internal conflicts in Myanmar, or South Korea's call on China to halt repatriation of defectors to North Korea out of humanitarian spirit, has recently highlighted the issue of refugees.
     
        The issue of refugees is both a legal and politically sensitive one, for it may impact intergovernmental relations, national security and stability, national welfare and culture.[59] So states tend to consider the issue of refugees from a political perspective instead of a humanitarian one, thus leaving the distinction between refugee policies and immigration policies ambiguous.[60] Yet the principles of pacta sunt servanda and human rights protection have become universally accepted. Therefore, it is not an enduring strategy to evade the issue of refugees in law. As is exemplified by the Immigration and Refugee Protection Act of Canada and the Immigration and Nationality Act of the USA,[61] it is appropriate to specify clearly the circumstances, procedures, numbers, and consequences for refugee applications in the implementation rules of Exit-Entry Administration Law of the P.R.C. or in a specialized law on refugee protection.[62] The definition on refugees on China's part should meet the minimal requirements by the Convention and Protocol relating to the status of refugees. The future law and regulations on refugee protection need to be flexible enough for China to shoulder its international obligations on the one hand, and to defend national interests on the other hand. After all, China still has the largest population, together with various degrees of other problems, such as poverty, unsteadiness in economic development, as well as many other priorities than refugee protection.
     
        B. Lack of Provisions on Trafficked Victims Protection
     
        Another deficit in the Law might be that it does not provide for the protection of victims of cross-border human trafficking. China is already a member to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (hereinafter, the “UN Trafficking Protocol”)。[63] The UN Trafficking Protocol is the most important and influential global instrument for combating human trafficking.[64] Although it is a security-oriented international initiative whose priority is to prosecute traffickers and transnational organized criminal groups, the UN Trafficking Protocol advances some notions that prioritize protecting trafficked victims, while leaving the decisions and actions to be taken to the states' discretion.[65] According to the UN Trafficking Protocol, trafficked victims should be given appropriate protection and assistance, the right to remain temporarily or permanently in the territories of the receiving states, as well as safe and voluntary repatriation in appropriate cases.[66] Moreover, in order to promote protection of trafficked victims, the Office of the United Nations High Commissioner for Human Rights has issued the Recommended Principles and Guidance on Human Rights and Human Trafficking as well as its Commentary, which recommend principles and guidance for states to protect human rights of trafficked victims according to international treaties including the UN Trafficking Protocol.[67] For example, trafficked victims should not be held in detention centers, other detention facilities or vagrant houses.[68] Nor should they be detained, prosecuted or punished for the illegality of their entry or residence or for the activities which result from their situation as trafficked victims.[69]
     
        Although it is fairly easy to distinguish human trafficking from migrant smuggling from a legal perspective, distinctions between human trafficked and migrant smuggling are ambiguous in international practices.[70] Trafficked victims usually enter the destination country illegally, or reside there illegally, or carry fraudulent or forged travel documents, or even engage in illegal activities including illegal working and prostitution. Moreover, protections of trafficked victims tend to impose huge financial and administrative burden on state parties, thus encouraging more illegal migrants including smuggled migrants.[71] As a result, states tend to identify illegal migrants as having been smuggled rather than trafficked.[72] Consequently, it has been argued that human trafficking increasingly serves as an excuse to strengthen the fight against terrorism, tighten the immigration laws and border controls, promote anti- or pro-prostitution policies, and increase the powers of law enforcement authorities.[73] It is even argued that the focus of transnational efforts against human trafficking on the prevention of cross-border movements of trafficked victims tend to set a transnational duty to criminalize not only human trafficking but also migrant smuggling, which might force more desperate people to engage in migrant smuggling and increase the risk of human trafficking.[74] Furthermore, subsequent strengthened border control might prevent the arrival or entry of refugees, which might make legal rights and interests of refugees including non-refoulement and non-penalties for illegal entry or presence of refugees of little practical value.[75] Such a close and confusing relationship between human trafficking on the one hand and immigration administration and border control on the other hand, makes protection of trafficked victims apt to be neglected in immigration administration.
     
        Against such an international background, it comes as no surprise that China makes no mention of human trafficking and protection of trafficked foreign victims, including their identification, status, healthcare, income or employment support, safe repatriation, in its Exit-Entry Administration Law. Nevertheless, despite the soft law on protection of trafficked victims in the UN Trafficking Protocol, it will become more legally binding in the future, with more states practicing protection of trafficked victims and having shared understanding on the necessity and requirements of the protection.[76] Moreover, the Conference of Parties to the UN Convention against Transnational Organized Crime is making great efforts to establish a specialized implementation review mechanism for monitoring and reviewing state parties' implementation of the Conventions and its Protocols, including the UN Trafficking Protocol.[77] Although the possible implementation review mechanism tends to be cooperative, non-adversarial, and non-punitive, the strategy embedded in the mechanism is likely to exert substantial political and reputation pressure from international community on the state parties, thus inducing compliance.[78] In particular, the potential national review mechanism contained in the implementation review mechanism will play a significant part in promoting the state parties' full implementation of the UN Trafficking Protocol. Therefore, it is important to provide for protection of victims of international human trafficking in domestic laws.
     
        Of course, it might be argued that it is not necessary to elaborate protection of victims of international human trafficking in such an administrative law as the Law, because such an administrative law mainly regulates the exit and entry of aliens and citizens as well as the stay and residence of aliens. In this line of argument to some extent, but the identification, legal status, working, healthcare, and repatriation of victims of international human trafficking are an essential part of alien administration. Moreover, it is clearly provided by the UN Trafficking Protocol that immigration, law enforcement, or other relevant authorities of state parties shall cooperate with one another by exchanging information necessary for identifying victims of international human trafficking.[79] And state parties shall provide or professionalize training programs for immigration, law enforcement, or other relevant authorities in protecting the rights of trafficked victims, including protecting victims from the traffickers.[80] Such provisions on information exchange and training in the UN Trafficking Protocol are mandatory. Therefore, protection of victims of international human trafficking as well as relevant information exchange and training constitute a significant part of the state obligations under the UN Trafficking Protocol. It thus should become a necessary component of the exit-entry administration of state parties. And if the Law fails to make such provisions, other laws or regulations should complement. For example, although a specialized law for protection of trafficked victims has been made in the USA, which is named the Victims of Trafficking and Violence Protection Act,[81] the Immigration and Nationality Act provides for a specialized T-Visa for trafficked victims, which entitles trafficked victims to the same treatment as recognized refugees.[82] Take another example. Although the Immigration and Refugee Protection Act of Canada does not specify protection of trafficked victims, trafficked victims can apply according to the Act for refugee protection, or permanent resident visa on account of humanitarian or compassionate factors, or pre-removal risk assessment protection.[83] Moreover, the Citizenship and Immigration Canada has issued two specialized governmental regulations for guiding immigration officials in identifying victims of international trafficking and granting temporary or permanent resident permits to them, according to which victims may apply for work permits and health care through Interim Federal Health Program.[84] Therefore, it can be seen that it is viable to provide for protection of victims of international trafficking, at least temporary or permanent resident permits granting by general immigration law or specialized victim protection act or ministerial guidelines. So China should formulate a specialized law on trafficked victim protection[85] or incorporate such protection measures as issuance of temporary or permanent residence permits to trafficked victims into the prospective implementation regulations of the new law. The definition of human trafficking, as well as the identification and rights of international trafficked victims, should be detailed in ways consistent with the UN Trafficking Protocol and other relevant international treaties, such as the Convention Relating to the Status of Refugees (1951), the Protocol Relating to the Status of Refugees (1967), the International Covenant on Civil and Political Rights.[86]
     
        To sum up, the new law does not detail refugee protection or trafficked victim identification, thus failing to differentiate illegal migrants from refugees and trafficked victims in law. Among others, one important reason is that China tends to attribute the proliferation of illegal migrants largely to the provision of asylum or refugee protection as well as the protection of international trafficked victims.[87] Indeed, it may explain why some Western countries including the USA and Canada tend to tighten refugee protection policy, and to condition provision of protection of trafficked victims on their cooperation with state authorities to prosecute traffickers who may facilitate illegal migration objectively.[88] In the post-9/11 era, international migration is becoming a security issue.[89] So it is not surprising that China prioritizes national security and social order, as is indicated in the Law. But new laws or regulations on refugee and trafficked victim protection in China need to adapt to international obligations specified in the international treaties to which China is a party.
     
        III. Impacts on International Migration
     
        After ten years of efforts, the Exit-Entry Administration Law of the P.R.C. has come into being, as the most integrated and developed law on exit-entry administration in China, yet with some deficits. With the largest population of 1,339,724,852[90] and an average annual total of about 431,000,000 legal international migrants,[91] China is facing a heavy burden in administrating international migration. It can be speculated that the Law will have great impacts on international migration.
     
        First, the new law will have dramatic effects on the entry-exit, stay, residence, and employment of aliens. As the core part of China's immigration policy, immigrant regulation and alien control constitute a large part of the new law.[92] Although exit-entry administration has been more regularized and legalized through the Law, which may facilitate the legal migration of aliens, on the whole the Law represents greatly tightened control of aliens.
     
        There are many reasons for this strengthened control of aliens. Besides the international society which puts greater stress on border control and national security than ever in the post-9/11 era, the changes in China's national identity and interests are a big contributor. After over the thirty years of reform and opening up to the world, China is now in great need of professional managers and skilled talents, which can promote the sustainable development of its booming economy. It is not surprising that in the Schedule of Specific Commitments on Service of China, China's commitments to national treatment with respect to movement of natural persons focus on employees of transnational corporations as intra-corporate transferees, and on senior employees in foreign invested enterprises. In doing so, China has endeavored to attract foreign investment and learn advanced management experience and technology of aliens.[93] Yet China's rise is not only an economic event, but also a cultural one.[94] As China becomes more and more prosperous and civilized, Chinese people are becoming rational about aliens. The super-national treatment that aliens have actually received in many aspects due to a relaxed immigration regulation at the initial stage of China's reform and opening up to the world is gradually giving way to the real national treatment.[95] Of course, this change may appear to be more rigid immigration regulation. But it is not appropriate to interpret this more legalized and enhanced regulation of aliens as biased or even xenophobic against aliens. As the Law indicates, the lawful rights and interests of aliens are protected and guaranteed in China.[96]
     
        China's tightened regulations of aliens serve two purposes. On the one hand, the tightened regulation of the exit-entry, stay, residence, and employment of legal aliens, may facilitate the movement of the desired aliens, such as investors, high-level managers, highly skillful talents, tourists, international students, which is required for the sustained development of China's booming economy. It is worth noting that as a new rule, foreign investors, who default in the payment of labor remuneration, will not be allowed to leave China.[97] This will somewhat alleviate the problem of defaults with regard to the payment of labor remuneration in China. On the other hand, the tightened immigration regulation may prevent and deter those undesired illegal migrants through rigid visa issuance, border patrol and inspection, residence control, employment supervision, compulsory repatriation and strict penalties. In particular, the provisions on compulsory repatriation and deportation will be an effective instrument for combating illegal migration. Although aliens may apply for administrative review of the decision on their compulsory repatriation, the reviewing organs are administrative rather than judicial ones, which have more discretion in interpreting the Law. Although only the Ministry of Public Security is authorized to impose administrative penalty of deportation, such decision is final, not subject to any judicial review. Additionally, aliens who have been repatriated or deported will be not allowed to reenter within a certain years. Thus the administrative decisions on the repatriation or deportation of aliens will stand as a more effective instrument for combating and deterring illegal migrants than the judicial review of such administrative decisions that tends to be available in Western developed countries.
     
        Although there are divergent viewpoints with regard to illegal migrants, China is stepping up its efforts to combat illegal migrants, like other countries, such as the USA and Canada.[98] Its negative effect is possibly that more and more illegal migrants may tend to recourse to migrant smugglers, thus increasing human trafficking. Furthermore, with no clear guidelines for distinguishing trafficked victims and refugees from smuggled migrants, it is likely that trafficked victims and asylum seekers might be detained or deported like illegal migrants.
     
        The effects, which the Law will have on international migration of Chinese citizens, will also be great. The law may continue to facilitate the cross-border movement of Chinese citizens for businesses, sight-seeing, overseas education, cultural exchanges, visiting relatives, and so on. It may also attract more and more overseas Chinese to return to China for residing permanently or other affairs, thus alleviating the brain drain in China to some extent. It is worth mentioning that the tightened exit-entry administration might effectively prevent and deter illegal emigration of Chinese citizens. One of the effective strategies for achieving such an effect is to prohibit Chinese citizens who have been deported by foreign states due to illegal entry, stay, or working, from leaving China within a period of time after the deportation.[99] Another effective strategy is to add a fallback provision which provides that Chinese citizens are not allowed to leave China when other Chinese laws or administrative regulations prohibit them from leaving.[100] This could serve to prevent Chinese citizens from leaving China by other laws or administrative regulations.
     
        Conclusion
     
        The Exit-Entry Administration Law of the P.R.C. has been the first systematic legislation on exit-entry administration with great legal legitimacy. On the one hand, it has integrated all the reasonable ingredients of the existing laws on exit-entry administration as well as international practices; moreover, it has developed many new points. And it has been compatible with other laws in China. With improved clarity, consistence, generality, and reasonableness, the Law has gained systematic legitimacy, which may induce compliance. On the other hand, the authority of the administration of exit and entry has been enhanced through the clarification and harmonization of the responsibilities of relevant authorities for supervising transnational activities. In particular, local authorities have been entrusted with sufficient enforcing power, which helps combat illegal entry, stay, residence, and employment of aliens as well as illegal exit of Chinese citizens. Moreover, innovation on visa issuance facilitates legal migration, thus helping to attract migrants who are supposed to contribute to China's socio-economic development.
     
        But the new law is not perfect, especially when being analyzed according to international obligations that China is expected to comply with. It does not detail the circumstances, criteria, procedures, and consequences for refugee application, nor does it distinguish trafficked victims from illegal migrants, let alone providing for protection of trafficked victims. This is partly because Chinese officials tend to believe that refugee and trafficked victim protection may induce illegal migration. In this sense, it is conservative since it prioritizes national security as opposed to individual rights. The law reflects a change in China's state identity and interests in an increasingly globalized and interdependent global system. The Law may have a great impact on international migration. It might continue to facilitate cross-border movement of migrants who are likely to play a constructive role in China's economic and social development. The tightened control of aliens allows super-national treatment that aliens actually receive in many spheres in China to phase out. The enhanced efforts to combat illegal exit-entry, illegal stay, and illegal working of aliens may further protect China's border security, labor market, and social stability but leaving the rights of refugees and international trafficked victims insufficiently protected.

    【作者简介】
    兰立宏,男,中国社会科学院法学博士,铁道警察学院副教授,加拿大麦吉尔大学法学院访问学者;师秀霞,女,铁道警察学院治安系讲师,硕士研究生,主要从事出入境管理和国际警务方面的研究。
    【注释】
    [1]Exit-Entry Administration Law of the P.R.C., art. 10, 89.
    [2]The existing laws and regulations on exit-entry administration mainly comprise of Law of the P.R.C. on Control of the Entry and Exit of Aliens and Law of the P.R.C. on Control of the Entry and Exit of Citizens (1985) and their respective implementation rules (1986), Act of the P.R.C. on Exit-Entry Frontier Inspection (1995) replacing the former regulations, Interim Measure on Regulating Chinese Citizens Coming and Going between the Mainland and Hong Kong or Macau of China on Private Business (1985), and Measure on Regulating Chinese Citizens Coming and Going between the Mainland and Taiwan of China (1991).
    [3]See the Bureau of Exit and Entry Administration of the Ministry of Public Security of the P.R.C., 2011年出入境人员和交通运输工具数量同比稳步增长 (A Steady Increase in the Numbers of People and Transportation Vehicles Leaving or Entering China in 2012), at http://www.mps. gov.cn/n16/n84147/n84196/3612366.html (last visited Jun. 1, 2013).
    [4]Id.
    [5]Id.
    [6]See the National Bureau of Statistics of the P.R.C, 2010年第六次全国人口普查接受普查登记的港澳台居民和外籍人员主要数据 (The Data on Residents of Hong Kong, Macau and Taiwan, and Aliens Who Have Been Registered During the Sixth National Census in 2010), at http://www.stats.gov.cn/tjgb/rkpcgb/qgrkpcgb/t20110429_402722560.htm (last visited Jun. 1, 2013).
    [7]See Malcolm N. Shaw, International Law, 6th edition, Cambridge University Press (Cambridge), at 198 (2008).
    [8]Joel P. Trachtman, The International Law of Economic Migration: Toward the Fourth Freedom, W.E. Upjohn Institute for Employment Research (Kalamazoo), at 3 (2009).
    [9]See fn. 1, art. 4, 42.
    [10]See Xiangdong Guo, 论中国出入境管理制度存在的弊端与完善途径 (Deficits in the Chinese System for Exit-Entry Administration and Its Improvement), 158(12) 经济研究导刊 (Economic Research Guide) 220, 220 (2012).
    [11]See fn. 1, art. 4(3).
    [12]Id. art. 29–49.
    [13]Id. art. 70.
    [14]The authorities of the exit-entry frontier inspection organs are provided by the Act of the P.R.C. on Exit-Entry Frontier Inspection, which was adopted by the State Council of China (the highest executive body) on 6 July 1995. According to the levels of legal force in China, the Act can be classified into an administrative regulation with a lower level of legal force than the laws which are adopted by the National People's Congress and its Standing Committee (the highest legislative body). Thus the legal status of the exit-entry frontier Inspection organs has been established by the Law with stronger legal force.
    [15]See fn. 1, art. 21(1), 25(1).
    [16]For the existing laws on exit-entry administration, see fn. 2.
    [17]See Xiangdong Guo, 重构我国出入境管理法律体系的思考 (Reconstructing the Chinese Legal System on Exit-Entry Administration), 33(5) 哈尔滨学院学报 (Journal of Harbin University) 49, 49 (2012).
    [18]According to the General Agreement on Trade in Service, national treatment in respect of movement of natural persons is applicable to the sectors inscribed in the Member State's Schedule of Specific Commitments on Services. Member States may take measures to regulate the entry of natural persons into, or their temporary residence on, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, without nullifying or impairing the benefits accruing to any Members under the terms of a specific commitment. The fact of requiring a visa for natural persons of certain Members and not for those of others alone shall not be regarded as such nullification or impairment. China's commitment to national treatment with respect to the movement of natural persons focuses on employees of transnational corporations as intra-corporate transferees, senior employees in foreign invested enterprises, and service salespersons. For China's schedule of specific commitments on services, see the P.R.C. Schedule of Specific Commitments on Services, WT/ACC/CHN/49/Add.2, at http://www.wto. org/english/thewto_e/acc_e/completeacc_e.htm (last visited Jun. 3, 2013).
    [19]Law of the P.R.C. on Control of the Entry and Exit of Aliens, art. 29(2); Law of the P.R.C. on Control of the Entry and Exit of Citizens, art. 15.
    [20]See Lon L. Fuller, The Morality of Law, revised edition, Yale University Press (New Haven), at 39, 46–90 (1969). According to Lon L. Fuller, consistence is one of the eight criteria of legality of law (internal morality of law), which is necessary for its legitimacy. The others of the criteria include generality, clarity, promulgation, non-retroactivity, reasonableness, constancy, and congruence. Consistence means law avoid contradiction in logical terms; generality means law be general, prohibiting, requiring and permitting certain kinds of conduct; clarity means law be clear enough to allow the citizens to follow; promulgation means law be accessible to the public, enabling citizens to know what the Law requires; non-retroactivity means law be prospective, enabling citizens to take the Law into account in their decision making; reasonableness means law be realistic and not demand the impossible; constancy means its requirements of citizens stay constant; congruence means that there should be congruence between legal norms and the actions of officials operating under the law. In fact, the legitimacy of the Law has been enhanced substantially in terms of clarity, reasonableness, generality as well as its consistence.
    [21]See fn. 1, art. 58–69.
    [22]Id. art. 70–88.
    [23]There is much controversy among scholars regarding the extent and impact of the changes generated by globalization. See Jan A. Scholte, The Globalization of World Politics, in John Baylis & Steve Smith eds., The Globalization of World Politics, Oxford University Press (N.Y.), at 13–15 (2001); Thomas D. Lairson & David Skidmore, International Political Economy: The Struggle for Power and Wealth, 3rd edition, Wadsworth Publishing (Belmont), at 109–11 (2003).
    [24]There are three types of systems of states upheld by three traditions of international thoughts in IR theory: international system in the Hobbesian perspective, international society in the Grotian tradition, and international community in the Kantian tradition. The idea that the world of states forms an international community is connected to the universal discourses such as democratic governance, neo-liberal market, and international human rights. For the three traditions of international thought, see Andrew Linklater & Hidemi Suganami, The English School of International Relations: A Contemporary Reassessment, Cambridge University Press (N.Y.), at 117–27 (2006). For the debate as to whether an international society and community exist, see Christian Reus-Smit, Society, Power and Ethics, in Christian Reus-Smit ed., The Politics of International Law, Cambridge University Press (N.Y.), at 274–79 (2004).
    [25]See HU Jintao, Unite as One and Work for a Bright Future, Statement by President HU Jintao at the General Debate of the 64th Session of the UN General Assembly, N.Y., Sept. 23, 2009, at http://www.china-un.org/eng/gdxw/t606150.htm (last visited Jun. 15, 2013).
    [26]See fn. 1, art. 31(2).
    [27]Id. art. 20.
    [28]Id. art. 22(3).
    [29]Id. art. 23(1).
    [30]Id. art. 46.
    [31]The Public Order Administration Punishment Law of P.R.C, art. 21.
    [32]See Yu Wu, 约5000万:全球华侨华人总数首次得出较明确统计数字 (About 50 Million: The First Fairly Precise Statistical Total of Overseas Chinese All over the World), Nov. 30, 2011, at http://news.xinhuanet.com/fortune/2011-11/30/c_111206719.htm (last visited Jun. 16, 2013).
    [33]See fn. 1, art. 13.
    [34]Id. art. 14.
    [35]See United Nations Development Program, Human Development Report 2009: Overcoming Barriers: Human Mobility and Development, Palgrave Macmillan (N.Y.), at 2 (2009).
    [36]Id.
    [37]See International Organization for Migration, World Migration Report 2011: The Future of Migration: Building Capabilities for Change, Geneva, at 120 (2010).
    [38]See Hailin Zhang, “三非”外国人清理档案 (A File on Clearing-Up of Illegal Entry, Residence, and Work), 今晚报 (Tonight News), Jun. 24, 2012, at 10, at http://newspaper.jwb. com.cn/jwb/html/2012-06/24/content_821949.htm (last visited Sept. 16, 2012).
    [39]See European Commission, Clandestino Project, Final Report, Nov. 23, 2009, at 21, at http://epaper.jwb.com.cn/jwb/html/2012-06/24/content_821949.htm (last visited Jun. 16, 2013).
    [40]The Exit-Entry Administration Law of the P.R.C., art. 19, 74.
    [41]See Zhigang Yu, 在华外国人犯罪的刑事法律应对 (A Criminal Response to the Crimes Committed by Aliens in China), (6) 中国社会科学 (Social Sciences in China) 134, 147 (2012).
    [42]See fn. 1, art. 7.
    [43]Id. art. 21(1), 25(1).
    [44]Id. art. 39.
    [45]Id. art. 42.
    [46]Id. art. 45.
    [47]Id. art. 59, 61, 62.
    [48]Id. art. 62(3).
    [49]See Dongxian Peng, 出境入境管理法整合现有法律实现突破完善 (The Exit-Entry Administration Law Be an Integration and Improvement of the Existing Laws), (13) 中国人大 (The People's Congress of China) 40, 40 (2012).
    [50]See Alexander Wendt, Social Theory of International Politics, Cambridge University Press (N.Y.), at 141–45 (1999). Wendt develops a structural idealist perspective on international politics. According to him, international structure is constitutive of shared ideas and cultural norms and values. International structure in turn helps condition state identities, interests, and behaviors. From this theory it follows that immigration law as an important instrument for regulating international interactions and transnational exchanges expresses state identities and interests.
    [51]The Convention was adopted by the General Assembly of the UN on 14 December 1950, and entered into force on 22 April 1954. Up till 20 June 2013, there are 145 parties. China ratified the Convention on 24 September 1982. See Convention Relating to the Status of Refugees, at http://treaties.un.org/pages/ViewDetailsII.aspx?&src=UNTSONLINE&mtdsg_no =V~2&chapter=5&Temp=mtdsg2&lang=en (last visited Jun. 20, 2013).
    [52]The Protocol entered into force on 4 October 1967. Up till 20 June 2013, there are 146 parties. China ratified the Convention on 24 September 1982. See the Protocol Relating to the Status of Refugees, at http://treaties.un.org/pages/ShowMTDSGDetails.aspx?src=UNTSONLINE &tabid=2&mtdsg_no=V-5&chapter=5&lang=en#Participants (last visited Jun. 20, 2013).
    [53]See the Convention Relating to the Status of Refugees, art. 31, 33; Shuying Liang, 非法入境难民的处理原则 (On the Principles Dealing with Illegal-Entry Refugees), (6) 法学杂志 (Law Science Magazine) 2, 4–5 (2008); Aining Zhang, 难民保护面临的国际法问题与对策 (Problems of Public International Law Confronted by Refugee Protection and Its Measures), 25(5) 政法论坛 (Tribunal of Political Science and Law) 163, 164 (2007).
    [54]See the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2237 UNTS 319, art. 14(1).
    [55]See the Constitution of the P.R.C., art. 32(2); Law of the P.R.C. on Control of the Entry and Exist of Aliens, art. 15.
    [56]See UNHCR Regional Representation in China, at http://www.unhcr.org.hk/unhcr/en/ about_us/China_Office.html (last visited Sept. 20, 2012).
    [57]See UNHCR, fn. 56; also see Yuanjun Wang, 关于建立我国难民保护法律制度的几点思考 (Several Suggestions for Making Chinese Legal Provisions on Refugee Protection), (12) 公安教育 (Police Education and Training) 47 (2005).
    [58]See UNHCR Regional Representation for China and Mongolia, China Fact Sheet, Sept. 2012, at http://www.unhcr.org/5000187d9.html (last visited Sept. 21, 2012).
    [59]See Zhang, fn. 53 at 163, 169.
    [60]Id.
    [61]See Immigration and Refugee Protection Act (Canada), S.C. 2001, Section 31, Part 2, 4, 5, at http://laws-lois.justice.gc.ca/PDF/I-2.5.pdf (last visited Oct. 20, 2012); Immigration and Nationality Act (U.S.), Act 101(a)(42), 207–09, ch. 2 (2002).
    [62]See Guofu Liu, 中国未来绕不开难民议题 (The Issue of Refugees Be Inescapable in Future China), Feb. 23, 2012, at http://news.xinhuanet.com/world/2012-02/23/c_122744 895.htm (last visited Sept. 21, 2012); Wang, fn. 57 at 46, 49.
    [63]The Protocol entered into force on 25 December 2003. Up till 21 June 2013, there have been 156 parties, and China ratified the Protocol on 8 February 2010. For the details, see Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, at http://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no= XVIII-12-a& chapter=18&lang=en (last visited Jun. 21, 2013).
    [64]See the Office of the United Nations High Commissioner for Human Rights, Recommended Principles and Guidance on Human Rights and Human Trafficking: Commentary, at 20, N.Y. & Geneva, 2010, at http://www.ohchr.org/Documents/Publications/Commentary_Human_Trafficking_ en.pdf (last visited Jun. 21, 2013).
    [65]See Viviana Waisman, Human Trafficking: State Obligation to Protect Victims' Rights, the Current Framework and a New Due Diligence Standard, 33(2) Hastings Int'l & Comp. L. Rev. 385, 386 (2010).
    [66]See the UN Trafficking Protocol, art. 6–8.
    [67]See Office of the United Nations High Commissioner for Human Rights, Recommended Principles and Guidelines on Human Rights and Human Trafficking, 20 May 2002, E/2002/ 68/Add.1, at 8–9, at http://www.unhcr.org/refworld/docid/3f1fc60f4.html (last visited Sept. 21, 2012); Office of the United Nations High Commissioner for Human Rights, fn. 64 at 127–81.
    [68]See Recommended Principles and Guidelines on Human Rights and Human Trafficking, at 8.
    [69]See Recommended Principles and Guidance on Human Rights and Human Trafficking: Commentary, at 131.
    [70]For the definition of trafficking in persons and smuggling of migrants, see UN Trafficking Protocol, art. 3(a); Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime (“UN Protocol Against Migrant Smuggling”), 2241 UNTS 507, art. 3(a).
    [71]See Seo-Young Chou & Krishna C. Vadlamannati, Compliance with the Anti-trafficking Protocol, 28 Eur. J. Pol. Econ. 249, 250 (2012).
    [72]See Venla Roth, Defining Human Trafficking and Identifying Its Victims, Martinus Nijhoff Publishers (Leiden & Boston), at 102–04 (2012); Anne Gallagher, Trafficking, Smuggling and Human Rights: Tricks and Treaties, 12 Forced Migration Rev. 25, 25–28 (2002). Of course, there are many reasons for states' tendency to identify trafficked victims as illegal migrants or smuggled migrants or failure to identify trafficked victims correctly. In addition, there are other factors, such as various understanding on the definition on human trafficking in the UN Trafficking Protocol, different definitions of human trafficking in domestic law, the lack of professional training for immigration officials, law enforcement authorities or relevant actors for identifying trafficked victims, victims' failure to cooperate with authorities due to many reasons, etc.
    [73]See Kamala Kempadoo, Jyoti Sanghera & Bandana Pattanaik eds., Trafficking and Prostitution Reconsidered: New Perspective on Migration, Sex Work, and Human Rights, Paradigm Publishers (Boulder), at 221–35 (2005); Venla Roth, Defining Human Trafficking and Identifying Its Victims, Martinus Nijhoff Publishers (Leiden & Boston), at 13–14 (2012).
    [74]See James C. Hathaway, The Human Rights Quagmire of “Human Trafficking,” 49(1) Va. J. Int'l L. 1, 5 (2008).
    [75]Id. at 1, 6.
    [76]See Jutta Brunnee & Stephen J. Toope, Legitimacy and Legality in International Law: An Interactional Account, Cambridge University Press (N.Y.), at 12–13 (2010). Drawing on the social theory of international politics, Jutta Brunnee & Stephen J. Toope, argue that international law's obligatory effect derives from a shared understanding about the underlying issue and the ongoing practice of legality consisting of the eight criteria of legality insisted by Lon Fuller. On the eight criteria of legality, see Fuller, fn. 20.
    [77]See the revised draft terms of reference of the mechanism for the review of implementation of the United Nations Convention Against Transnational Organized Crime and the Protocols, UN Doc., CTOC/COP/WG.5/2011/2/Rev.2, Feb. 20, 2012.
    [78]See Id., at 3 para. 3. For the managerial theory on international legal compliance, see Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, Harvard University Press (Cambridge, MA), at 1–33 (1995); Harold H. Koh, Why Do Nations Obey International Law?, 106(1) Yale L.J. 2599–659 (1997).
    [79]See UN Trafficking Protocol, art. 10(1).
    [80]Id. at 10(2).
    [81]See Victims of Trafficking and Violence Protection Act (2000), Public Law 106–386, Oct. 28, 2000, 114 Stat. 1467.
    [82]See Immigration and Nationality Act (U.S.), fn. 61, Section 101(a)(15)(T)(i), 2002.
    [83]See Immigration and Refugee Protection Act (Canada), fn. 61, art. 25, 95–98, 112–114.
    [84]See Citizenship and Immigration, IP 1 Temporary Resident Permits, Appendix G,The Ministerial Instructions Regarding the Issuance of Temporary Resident Permits to Victims of Human Trafficking (“The Ministerial Instructions”), Jun. 12, 2007; Citizenship and Immigration, IP 1 Temporary Resident Permits, 16. Procedure: Victims of Human Trafficking, The Guidelines Regarding the Issuance of Temporary Resident Permits to Victims of Human Trafficking (“The Guidelines”), Jun. 19, 2007.
    [85]See Guofu Liu, 中国反贩运人口法律的理性回顾和发展思考:以国际法为视角 (A Rational Thinking on the Chinese Legislation on Human Trafficking and Its Development: A Perspective of International Law), (112) 甘肃政法学院学报 (Journal of Gansu Political Science and Law Institute) 74, 84 (2010).
    [86]It deserves noting that China signed the International Covenant on Civil and Political Rights on 5 October 1998, yet has not ratified it. The Covenant was adopted on 16 December 1966 and entered into force on 23 March 1976. Up to 21 October 2012, 167 countries have ratified it. For the details of the Covenant, see International Covenant on Civil and Political Rights, 999 UNTS 171.
    [87]On the provisions of political asylum, see Jun Ge, 非法移民既是违法者也是被害者:访外交部领事司司长罗田广 (Illegal Migrants as a Law-Breaker and Victim: An Interview with Luo Tianguang, Director of the Department of Consular Affairs at the Ministry of Foreign Affairs), (5) 世界知识 (World Affairs) 26, 27 (2004). In this interview, Luo stressed that China keeps against the common practice of giving political asylum to illegal migrants by the Western developed countries, because this kind of practice tends to politicize illegal migration and might encourage more illegal migrants, which is an important factor that increases the difficulty of international community in dealing with illegal migration. See Seo-Young Cho & Krishna C. Vadlamannati, Compliance with the Anti-trafficking Protocol, 28 Eur. J. Pol. Econ. 249, 252 (2012). Cho et al. argue that generous treatment of trafficked victims may encourage illegal migration, possibly inducing more human trafficking flows and bringing about poor compliance with the protection of trafficked victims by the state parties to the UN Trafficking Protocol.
    [88]See Fran?ois Crépeau, Delphine Nakache & Idil Atak, International Migration: Security Concerns and Human Rights Standards, 44(3) Transcultural Psychiatry 311, 312 (2007). In Canada there is no legal document which requires trafficked victims testify against their traffickers in order to get the protection. In the National Action Plan to Combat Human Trafficking issued on 6 June 2012, it is mentioned that trafficked victims are not required to testify against their traffickers to gain temporary or permanent resident status. But the instructions or guidelines for issuing such resident status are only discretionary ministerial policy measures. So what kinds of potential victims can be granted such status, when they will be granted such status, and what kind of protection can be granted to them, remain problems. Also see Victims of Trafficking and Violence Protection Act of 2000, Public Law 106–386, Section 107(E); Christal Morehouse, Combating Human Trafficking: Policy Gaps and Hidden Political Agendas in the USA and Germany, VS Verlag für Sozialwissenschaften (Wiesbaden), at 112 (2009).
    [89]See Crépeau, Nakache & Atak, fn. 88 at 311, 326–27.
    [90]See the National Bureau of Statistics of China, 第六次全国人口普查主要数据发布(Publishing the Main Data Gained during the Sixth National Census Conducted in 2010), at http://www.stats.gov.cn/tjfx/jdfx/t20110428_402722238.htm (last visited Jun. 22, 2013).
    [91]See the Bureau of Exit and Entry Administration of the Ministry of Public Security of the P.R.C., fn. 3.
    [92]Tomas Hammar made a classic distinction between two parts of immigration policy, i.e. immigration regulation and aliens control versus immigrant policy. The former refers to rules and procedures governing the selection and admission of foreign citizens, including control of the stay, residence, and employment of aliens; the latter refers to public services available to the resident immigrants, including work and housing conditions, social benefits and social services, educational opportunities and language instructions, cultural amenities, leisure activities, etc. See Tomas Hammar, Introduction to European Immigration Policy: A Comparative Study, in Marco Martiniello & Jan Rath eds., Selected Studies in International Migration and Immigrant Incorporation, Amsterdam University Press (Amsterdam), at 51–55 (2010). It is worth mentioning that the Exit-Entry Administration Law of the P.R.C. covers both the emigration policy and immigration policy. But it covers immigration regulation and aliens control instead of immigrant policy. The immigrant policy is covered by other laws and regulations in China. For example, Interim Measures for Social Insurance System Coverage of Foreigners Working within the Territory of China, which was approved by the State Council of China, and came into effect since 15 October 2011. For its content, see 在中国境内就业的外国人参加社会保险暂行办法 (Interim Measures for Social Insurance Coverage of Foreigners Working in China), at http://www.gov.cn/gzdt/2011-09/08/content_1943787.htm (last visited Jun. 22, 2013).
    [93]See the P.R.C. Schedule of Specific Commitments on Services, fn. 18.
    [94]See Michael Barr, Who's Afraid of China? The Challenge of Chinese Soft Power, Zed Books (London & N.Y.), at 3 (2011).
    [95]For example, in handling criminal cases involving aliens, aliens tend to have a higher legal status than Chinese citizens because of the deficits in legal provisions, which is inconsistent with the principle of equality before law. Police and judicial organs as well as their personnel tend to relate criminal cases involving aliens to China's foreign relations and economic development, and take an unusually discreet attitude toward such cases, thus usually applying less rigorous criminal penalties to aliens than Chinese citizens; and such also exists in case of aliens violating Chinese law. See Yu, fn. 41 at 134, 141–43 (2012); Jianyun Jiang, 涉外刑事案件处置之司法困境及对策探讨 (Judicial Dilemma and Its Countermeasures on Criminal Cases Concerning Foreign Affairs), 13(1) 上海公安高等专科学校学报 (Journal of Shanghai Public College) 69, 69–71 (2003); Jianyun Jiang, 略谈公安出入境管理法律制度的完善 (A Brief Comment on Improvement of the Legal System on Exit and Entry Control by the Police), 71(5) 湖南省政法管理干部学院学报 (Journal of Hunan Political-Legal Cadre College) 38, 39 (2000).
    [96]See fn. 1, art. 3.
    [97]Id. art. 28(3).
    [98]Those supportive of illegal immigration may argue that illegal migrants tend to work at relatively lower costs, which leads to lower prices and higher profits to employers. Moreover, illegal immigrants are consumers and may pay in the social security system with payroll tax directly or indirectly. Yet those against illegal immigration tend to insist that illegal migrants usually have low level of tax payments, low skills, low wages, and relatively high rate of consumption of social services. Furthermore, employers may reap the benefits of cheap labor while taxpayers pay the cost. Amnesties granted to illegal migrants may bring about the issue of dual citizenship, thus diminishing their loyalty to host states. Recent arguments against illegal migration tend to involve the threats to national security brought by illegal migrants. For the disputes, see Steven G. Koven & Frank G?tzke, American Immigration Policy: Confronting the Nation's Challenges, Springer (Louisville), at 203–05 (2010).
    [99]See fn. 1, art. 12(4).
    [100]Id. art. 12(6).

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