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Human Rights of Migrants
IML Course
New York, 11-13 June 2008
Kristina Touzenis
What are Human Rights?
What/who do they protect against?
Who has obligations?
Who can enforce?
Who implement?
SHORT History
French/American Revolution – changes is social
order
Strong nation state and state institutions
Individuals were object, not subjects, under
international law – protected by own state
Depended on said state – stateless persons no
protection at all
Abuses by own governement – just too bad...
UDHR – binding?
Division of ICCPR and ICESCR
There is no hierarchy of rights – but sometimes
rights need to be balanced against each other
Human Rights are a political means of recognising
human dignity in a legally binding way
Creation of a private sphere for every human being
which is to be protected agains undue interference
from the State
Restriction
Many rights have a limitation clause (case of war,
for the best of a democratic society) few are
absolute as prohibition of torture
Public order, public morals, public health, national
security, prevention of crime and disorder,
protection of HR of others
Negative/Positive
Although the initial distinction between ICCPR
rights, so-called “negative rights,” and ICESCR
rights, “positive rights,” grew out of post-war
political tensions, in more recent decades the
division has been presumed to reflect fundamental
differences in the nature of the rights themselves.
Levels of Obligations
Respect
Protect
Promote/Facilitate
Fulfil
In terms of international law, the obligation “to
respect” requires States “to refrain from any
actions which would violate any of the rights
under a Convention. The obligations to protect and
ensure goes well beyond that of to respect, since it
implies an affirmative obligation on the part of the
State to take whatever measures are necessary to
enable individuals to enjoy and exercise the
relevant rights, including protection form third
parties.
Subjective Rights
Several conditions will have to be fulfilled before
international human rights can be considered
subjective rights in a national court.
If it is directly applicable there is a question of
whether the particular right has to be given a
specific form and content in domestic legislation,
and if it needs to be incorporated the question
whether it is a legal rights depends on that
incorporation.
Economic and Social Rights
Freedom – to starve or be sick?
NOT a right to receive funds
Interdependence between rights
ESCR cont.
Justiciability
Human rights obligations would have little
meaning if the duty bearers could not be held
accountable to rights holders and to society at
large. Such accountability is put into practice
through several institutions and processes.
Appropriate means of redress, or remedies must be
available to any aggrieved individual or group and
appropriate means of ensuring governmental
accountability must be put in place
Committee on Economic, Social and Cultural Rights, General Comment 9: The
domestic application of the Covenant, U.N. Document E/C.12/1998/24 of 3
December 1998
Foundations of international immigration
law: to whom does it apply?
Non-citizens
Migrant workers
Famly Members
Irregular Migrants
Particulalry vulnerable – include victims of trafficking and
smuggling
Visitors/tourists
Business persons
Service providers
But also refugees - Persons outside of their own country seeking
international protection
And IDPs (refugees within a country) – guiding principles 1998
State sovereignty and rights exceptions
States control their borders and decide who may enter their
territories – but exceptions:
Citizens have the right to enter their own countries, a right which
may also encompass non-citizens with long-term resident status
Non-refoulement in the sense of non-rejection at the border
Human rights principles, e.g. right to family life
Regional integration regimes: e.g. EU free movement law
States can also expel non-citizens from territory but limitations
Principle of non-refoulement
Human rights principles, e.g. right to family life
Procedural safeguards for lawfully resident non-nationals (Art
13 ICCPR) and for irregular migrants (Art 22 ICRMW)
More restrictions on this discretion in EU law (Art 39(3) EC
Treaty)
State obligations to non-nationals
Human rights are inalienable – but not all are absolute
Derogation possible in times of emergency (Art 4.
ICCPR)
Human rights instruments make some distinctions
between national and non-nationals, regular and irregular
migrants
Citizens
Regular migrants
Irregular migrants
Role of the State/ national security
Certain human rights (e.g. freedom of expression – Art 19 ICCPR;
peaceful assembly – Art 21 ICCPR) can also be limited for specific
reasons such as protection of national security or public order or
public health, etc.
Derogations from specific rights are also possible in times of public
emergency threatening the life of nations/democratic societies (Art
4 ICCPR, Art 15 ECHR.)
Procedural safeguards (e.g. against expulsion) are usually more
limited when national security is at issue (Art 13 ICCPR)
Rights that cannot be derogated from
Right to life
Prohibition of genocide
Prohibition of slavery / slave trade
Prohibition of torture
Prohibition against arbitrary detention
Prohibition against racial discrimination
Right to self-determination
Right to humane treatment as a detainee
Prohibition against retroactive penal measures
Right to equality before the law
Right to leave any country and return to one’s own country
Principle of non-refoulement
Right to freedom of thought and religion
International human rights law
International Bill of Human Rights
Universal Declaration of Human Rights 1948
Covenant on Civil and Political Rights 1966
Covenant on Economic, Social and Cultural Rights 1966
Other core human rights instruments (thematic or protecting specific
groups)
Convention on the Elimination of All Forms of Racial Discrimination
1965
Convention on the Elimination of All Forms of Discrimination Against
Women 1979
Convention against Torture 1984
Convention on the Rights of the Child 1989
Migrant Workers Convention 1990
Convention on Protection from Forced Disappearances 2006
Convention on the Rights of People with Disabilities 2006
The International Bill of Human Rights cover the human
rights in the other conventions
The specific conventions are not something new and
revolutionary compared to the Bill
Then why have them?
He was a clever guy – Shakespeare....
Specific protection
•
•
•
Basic Human Rights are valid for all persons
Some people are more in need of protection
against violations than others – thus more
attention
Not different rights but different focus
In most national legislation there will be measures
which aim at protecting the vulnerable in
accordance with international obligations
Non-nationals do not always benefit from the
treatment available to nationals
Important to consider vulnerability before
nationality (with respect for the State’s
sovereignty)
International human rights law
Universal principle of non-discrimination
Human rights applicable to nationals and non-nationals alike with
few exceptions (e.g. political rights)
Some rights of particular relevance to migrant workers and their
families, for example:
Right to leave one’s own country and enter/ return to that country ICCPR
Rights to freedom of assembly and association – ICCPR and
ICESCR
Rights to equal work and employment conditions - ICESCR
Rights to education and health - ICESCR
Right to family life – ICCPR and ICESCR
International human rights law
Important role of human rights treaty bodies
Monitor the application of human rights treaties in States parties by
considering periodic reports
Inter-State and individual complaints mechanisms
E.g. Human Rights Committee opinion in Karakurt v. Austria (2002)
Issue General Comments/ General Recommendations on interpretation of
instruments, e.g.
HRC General Comment 15 on the position of aliens under the ICCPR
(1986)
ESCR General Comment 20 on non-discrimination in economic,
social and cultural rights (art. 2, para. 2) (2009)
CERD General Recommendation 30 on discrimination against noncitizens (2004)
CEDAW General Recommendation 26 on women migrant workers
(2008)
Regional human rights law
General regional instruments
European Convention on Human Rights 1950
European Social Charter 1960 and Revised Charter 1996
American Convention on Human Rights 1969
African Charter on Human and Peoples’ Rights 1981
Specific regional instruments
e.g. European Convention on the Legal Status of Migrant
Workers 1977
ASEAN Declaration on the Protection and Promotion of the
Rights of Migrant Workers 2007
International labour law
ILO Constitution espouses principles of social justice protecting
persons in their working environment including those “in a country
other than their own”
International labour law comprises numerous Conventions and
Recommendations
ILO Conventions No. 97 (1949) and No. 143 (1975) specfically protect
migrant workers
ILO Declaration on Fundamental Principles and Rights at Work
1998
Member States must adhere to principles in the 8 core ILO Conventions
(against forced labour and eliminating child labour, on trade union rights, and
non-discrimination) even when they have not ratified the instrument/s in
question
International criminal law
Convention against Transnational Organized Crime
Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children
Protocol against the Smuggling of Migrants by Land,
Sea and Air
Convention contains general measures against transnational
organized crime while the Protocols deal with specific crime
problems concerning trafficking and smuggling
A State must be a party to the Convention to become a party
to the Protocols
Three problematic areas
1.
Principle of equality and non-discrimination
2.
Irregular migration
3.
To what extent does this principle apply to non-citizens,
particularly non-discrimination on the grounds of nationality?
Can irregular migrants expect equivalent protection to regular
migrants and/or nationals in both law and practice?
Economic and social rights
Are these rights equally and fully applicable to non-citizens?
Equality and non-discrimination
ICCPR, Arts 2(1), Art 26
All embracing language – “everyone”, “all persons”
Some exceptions permissible
Political rights (right to vote and stand for political office)
Freedom of movement limited to lawful residents – Art 12(1)
Discrimination clauses are open-ended
i.e. discrimination on the basis of nationality also prohibited
ICCPR (cont.)
ICCPR, Art 26
“All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other
status.”
Art 26 is a freestanding clause
can be used to combat discrimination outside the immediate scope
of ICCPR provisions, such as economic and social rights (Gueye v.
France (Communication No. 196/1985)
ICCPR Human Rights Committee
General Comment 15/17 on the Position of Aliens
under the Covenant 1986 (UN Doc. A/41/40) paras 1
and 2
“In general, the rights set forth in the Covenant apply to
everyone, irrespective of reciprocity, and irrespective of
his or her nationality or statelessness.
ICESCR
Like ICCPR, phrased in all embracing language
Non-discrimination clause, Art 2(2), appears more limited
prohibited grounds of discrimination do not include nationality and
do not appear open-ended
But
Art 2(3) permits States parties to limit economic rights to nonnationals (which confirms ICESCR applies to non-citizens)
ESC Committee Concluding Observations to States parties
disapprove of discriminatory treatment of non-nationals
ESC Committee General Comments recognise non-discrimination as
part of minimum core content of ESC rights
ICERD
Art 1(2) – distinctions, exclusions, restrictions or
preferences between citizens and non-citizens are
permissible
Art 1(3) – legal provisions concerning nationality,
citizenship or naturalisation permissible provided there is no
discrimination against a particular nationality
Art 5 – State obligation to prohibit and eliminate racial
discrimination in enjoyment of CP and ESC rights
ICERD
CERD General Recommendation No. 30 on Discrimination
against non-citizens (2004)
Art 1(2) to be interpreted as not undermining the basic prohibition
of discrimination and detracting from rights and freedoms in IHR
law
In principle, State obligation in Art 5 to be applied without
discrimination based on nationality (with exception of some rights
such as political rights)
Differential treatment on the basis of nationality permissible only
if it pursues a legitimate aim and is proportional to achievement of
that aim
Racial or ethnic profiling or stereotyping of non-citizens must be
avoided, particularly in context of anti-terrorism measures
Case law examples
International Federation of Human Rights Leagues
(FIDH) v. France
FIDH claimed that France had violated the right to
medical assistance (Art 13 of the Revised
European Social Charter) by ending the exemption
of irregular migrants with a very low income from
charges for medical and hospital treatment
Case law cont.
Defence for Children International (DCI). the Netherlands
Complaint No. 47/2008
The Committee recalls that under Article 31§1 (the right to
adequate housing), it holds that temporary supply of
shelter cannot be considered as adequate and individuals
should be provided with adequate housing within a
reasonable period of time (ERRC v. Italy, Complaint No.
27/2004, decision on the merits of 7 December 2005, § 35
and ERRC v. Bulgaria, Complaint No. 31/2005, decision
on the merits of 6 December 2006, § 34).
The Committee considers that the right to shelter is closely
connected to the right to life and is crucial for the respect
of every person’s human dignity. The Committee observes
that if all children are vulnerable, growing up in the streets
leaves a child in a situation of outright helplessness. It
therefore considers that children would adversely be
affected by a denial of the right to shelter. The Committee
thus holds that children, whatever their residence status,
come within the personal scope of Article 31§2.
Khosa & Ors v Minister of Social Development &
Others
The applicants were permanent residents in South
Africa. They challenged legislative provisions,
which limited entitlement to social grants for the
aged to South African citizens, and would prevent
children of non-South African citizens in the same
position as the applicants from claiming any of the
childcare grants available to South African children
(regardless of the citizenship-status of the children
themselves).
Council of Europe standards
European Convention on Human Rights 1950
Article 8 – right to respect for family and private life
Article 14 – non-discrimination (including nationality)
European Social Charter 1961/ Revised Charter 1996/
Collective Complaints Protocol 1995
FIDH v. France (2005) above
European Convention on the Legal Status of Migrant
Workers 1977
Only applicable to lawfully resident migrant workers from other
Contracting parties
Equal treatment with nationals in defined areas
European Convention on Human Rights
Art 14 (non-discrimination on grounds of
nationality)
Art 1 of First Protocol (enjoyment of property)
Gaygusuz v Austria (1996)
Poirrez v France (2003)
Art 5 (liberty)
A and others v Home Secretary (2004) UKHL
56 (House of Lords, 16 Dec 2004) – detention
without trial measures in anti-terrorism Crime
and Security ACt 2001, Part IV
Disproportionate
to emergency situation (Art 15)
Discrimination on grounds of nationality/national
origin
Art 16: Nothing in Articles 10, 11 and 14 shall be
regarded as preventing the High Contracting
Parties from imposing restrictions on the political
activity of aliens.
Has been interpreted restrictively by the European
Court of Human Rights (Piermont v France (1995)
20 EHRR 301)
Protocol No 12 to ECHR (2000)
Art 1 (General prohibition of discrimination)
1. The enjoyment of any right set forth by law shall
be secured without discrimination on any ground
such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth
or other status.
2. No one shall be discriminated against by any
public authority on any ground such as those
mentioned in paragraph 1.
Application of non-discrimination principle
Human rights and labour rights are applicable to all without
any distinctions based on nationality (IHRL / ILO)
Some exceptions permissible
Political rights (right to vote and stand for political office)
Freedom of movement within the country is limited to lawful residents
Distinctions will not violate the non-discrimination
principle if based on reasonable and objective criteria
(ICCPR) and proportionate to a legitimate aim and are
proportionate to that aim (ECHR)
“very weighty” reasons would have to be put forward before
the ECtHR could regard a difference in treatment based
exclusively on nationality as compatible
Right to work (Art 6 ICESCR) and its application to non-nationals
Other rights important for
migrants/migration?????
Right to Physical Integrety
Right to LIFE
Osman v. UK
LBC v. UK
Torture?
Maltreatment
Personal Liberty and Security
Family Life
Convention on Migrant Workers 1990
Adopted by UN General Assembly – 18 December 1990
Entry into force – 1 July 2003
42 States parties to date:
Not yet ratified by a single high-income destination country
Convention on Migrant Workers 1990
General features
Comprehensive instrument applicable to the whole
migration process and regulating the legal status of migrant
workers and their families
Protects the basic rights of all migrant workers and their
families (lawfully resident and irregular migrants) on the
basis of equality with nationals (Part III)
Grants lawfully resident migrants a number of additional
rights on the basis of equality with nationals (Part IV)
Convention structure
Part I – Scope and definitions
Part II – Non-discrimination with respect to rights
Part III – Human rights of all migrant workers
Part IV – Other rights of regular migrants
Part V – Rights of particular categories of migrant workers
Part VI – State cooperation/ obligations in promoting
sound, equitable, humane and lawful migration conditions
Part VII – Application of Convention
Part VIII – General Provisions
Part IX – Final Provisions
Groups of migrants covered
Migrant workers and members of their families
Persons to be engaged or who have been engaged in
employment (whole migration process)
Lawfully resident and irregular migrants
Specific groups of (temporary) migrant workers
Family members defined to include common law spouses,
dependent children and other dependent persons
E.g. seasonal workers/ project-tied workers
But not certain categories of foreigners
E.g. diplomats, international organization officials, students or
trainees, refugees, investors
Rights covered
Civil and political rights
Freedom from cruel, inhuman or degrading treatment – Art 10
Freedom from slavery, forced labour – Art 11
Procedural protection against individual expulsion applicable to all
migrant workers – Art 22
Employment rights
Rights to equal work/ employment conditions with nationals – Arts
25, 54
Irregular status does not preclude employment rights – Art
25(3)
Trade union rights (freedom of association) – Arts 26, 40
Economic, social and cultural rights
Economic, social and cultural rights
All migrant workers and their families (including irregular
migrants)
Emergency medical care – Art 28
Equal access with nationals to education – Art 30
Primary education not to be refused to children of irregular
migrants
Respect for cultural identity – Art 31
Lawfully resident migrant workers and families only
Equal access with nationals to housing – Art 43(1)(d)
Equal access to social and health services – Art 43(1)(e)
Family reunification – Art 44
Access to employment – Arts 52, 53
Migrant-specific rights
Effective protection by the State against violence, physical
injury, threats and intimidation – Art 16(2)
Prohibition on confiscation and destruction of identity and
travel documents (e.g. passports) – Art 21
Recourse to protection and assistance of consular/
diplomatic authorities of State of origin – Art 23
Transfer of earnings and savings (i.e. remittances) – Art 32
Free provision of information on Convention rights and
conditions of admission and, as far as possible, in a
language migrants can understand – Art 33
Inter-state cooperation (Part VI)
States have obligations to
consult and cooperate to promote sound, equitable and
humane migration conditions - Art 64(1)
collaborate to prevent and eliminate irregular migration Art 68
punish traffickers, smugglers and those who exploit
migrant workers (e.g. employers) - Art 68(1)-(2)
see also ILO Convention No. 143 (1975) and the
Trafficking and Smuggling Protocols supplementing
the UN Convention against Transnational Organized
Crime 2000 (Palermo Convention)
“State sovereignty” clause
(Part VIII, Art 79)
“Nothing in the present Convention shall affect
the right of each State Party to establish the
criteria governing admission of migrant
workers and members of their families.
Concerning other matters related to their legal
situation and treatment as migrant workers and
members of their families, States Parties shall
be subject to the limitations set forth in the
present Convention.”
Application of Convention (Part VII)
Migrant Workers Committee
http://www2.ohchr.org/english/bodies/cmw/
11 sessions held to date, commencing in March 2004
States parties are required to submit initial reports (after one
year) and then periodic reports (after 5 years) on application /
implementation of Convention
Committee issues Concluding Observations
Optional individual and inter-State complaint mechanisms
Obstacles to its ratification?
Practical/Administrative
Inadequate knowledge of the Convention
Implementation
Length and complexity of instrument
Requires resources and coordination between different
government departments
Legal/ Political
Explicit safeguards for irregular migrant workers
Argument that migrant workers’ rights are adequately
protected by other human rights instruments
Relevance – i.e. changes to labour migration landscape in the
era of globalization
General lack of political will
Protection of irregular migrants
“Illegal”
Connotations with
criminality
Invisibility under the law?
Right of everyone to
recognition everywhere as a
person before the law
(UDHR, Art 6)
“Irregular”
More neutral term
Used by other
international actors
Council of Europe
ILO
IOM
Who are irregular migrants?
Who are they?
clandestine entrants
overstayers (the majority)
Can they be counted?
10-15% of all migrants are irregular (ILO 2004)
500,000 enter the EU annually (EUROPOL)
comprise a six figure number (European Commission)
regularization data
Nearly 700,000 applied for normalization of their status in Spain in
2005
Why prevent irregular migration?
to avoid exploitation of irregular migrants by employers,
smugglers and traffickers
to prevent the existence of a marginalised group in society thus
contributing to social cohesion and stability
to ensure that migration is “managed” and the credibility of
legal immigration policies
to ensure satisfactory salary levels and working conditions for
national workers and lawfully resident migrant workers, which
are undermined by the employment of irregular migrants
to avoid the existence of whole sectors /businesses dependent on
irregular migrant labour
International responses
1970s
UN Resolutions against migrant smuggling /trafficking
ILO Convention No. 143 of 1975
1980s - 1990
UN Migrant Workers Convention drafted (adopted 18
December 1990; entry into force 1 July 2003)
2000
UN International Convention against Transnational
Organised Crime and Palermo Protocols
ILO Convention No 143 of 1975, part I
State obligation to respect the basic right of all migrant
workers (Art. 1)
Irregular migrant workers are to enjoy equal
treatment with regular migrants in respect of rights
arising out of past employement (remuneration, socal
security and other benefits)
Obligation to: take measures (in collaboration with
other States) to detect and prevent irregular migration
+ abuses connected thereto
Impose sanctions on traffickers/smugglers/employers
UN Migrant Workers Convention 1990
Part III on the human rights of all migrant workers and
members of their families
Reiterates that fundamental civil and political rights and
economic and social rights apply to all migrants
Part VI – promotion of sound, equitable, humane and
lawful conditions regarding international labour migration
State obligation to consult /cooperate to ensure labour
migration takes place in humane and sound conditions
Provisions for sanctions against smugglers, traffickers
and employers
Palermo Protocols 2000
Law enforcement – CRIMINAL LAW
But also protection provisions in Trafficking Protocol for
victims of trafficking
States to protect and assist victims with full respect for
their human rights – Art 2
States to implement measures for the physical,
psychological and social recovery of victims – Art 6
States to consider permitting victims to remain in their
territory temporarily or permanently in appropriate
cases – Art 7
WEAKER TERMINOLOGY ON RIGHTS
Regional responses: Americas
Advisory Opinion OC-18-03 of the Inter-American Court of
Human Rights on the juridical condition and rights of
undocumented migrants (17 Sept 2003)
request by Mexico for an authoritative opinion
migratory status of a person cannot constitute a justification in
depriving him/ her of the enjoyment and exercise of his/ her human
rights, including those related to work and that the migrant, upon
taking up a work related role, acquires rights by virtue of being a
worker that should be recognised and guaranteed independently of
his or her regular or irregular situation in the State of employment
Regional responses: Europe
European Convention on Human Rights (ECHR)
Council of Europe Convention on Action against Trafficking
in Human Beings (16 May 2005)
Council of Europe “soft law” instruments – for example:
Parliamentary Assembly Recommendation 1755 (2006) on the
human rights of irregular migrants
European Union
mainly repressive measures to prevent irregular migration
EU law and policy on irregular
migration
Overriding contaxt is “combatting” or the “fight” against
“illegal” migration
Mix of legally binding measures and “soft law” focusing
on
External border controls and cooperation and commin visa policy
Detection of irregular migrants – EURODAC, Schengen
Information System
Sancations against facilitators of irregular migration (especially
traffickers and smugglers)
Cooperation with and assistance to third countries
EU law and policy: Neglected elements?
Protection of Human Rights
Greater promotion of voluntary return
Development of genuine partnership with countries of
origin and transit
Support for regularisation
Establishment of an equitable EU legal migration policy
Human rights of irregular migrants
Protection of Civil and Political rights
e.g. Safeguards in detention and
Procedural and substantive guarantees against
expulsion and protection in the return process
Access to economic and social rights
Regularization and rights of residence
Access to economic and social rights
Key points
Universal human rights instruments apply to all persons
irrespective of nationality and legal status: e.g. UDHR, ICCPR,
ICESCR
ICESCR applies to non-nationals, including irregular migrants
see ESC Committee General Comments and practice
Interdependence between ESC and CP rights
Distinctions between citizens and non-citizens can only be
justified if they serve a legitimate State objective and are
proportional to the achievement of that objective
Specific standards relating to economic and rights of migrants
are less widely accepted
Legal and practical obstacles in accessing these rights,
particularly for irregular migrants
Access to economic and social rights
Pertinent rights
Fair work and employment conditions; health care; housing; social
security; education
Legal and practical obstacles to enjoyment of these
rights include
Fear of expulsion
Criminalisation of assistance to irregular migrants
Existence of official duties to denounce their presence
Limited trade union support
No access to labour courts /no legal aid provision
Right to Work
UDHR Art. 23, right to work, right to equal remuneration for equal
work, and just and favourable remuneration; Art. 24 rest an leisure,
limitation of working hours and annual holiday
Art. 6 and 7 ICESCR– the right to work and the right to enjoy just
and favourable conditions of work
Part 1 of European social charter: everyone shall have the right to
earn their living in an occupation freely entered upon, all workers
shall have the right to safe and healthy work conditions, just
conditions of work and to a fair remuneration sufficient for a decent
standard of living for themselves and their families
Conclusions: protection of irregular migrants
IHRL protects all persons regardless of
nationality or legal status
But elaboration of this principle in more detailed
instruments not widely accepted
Violations of migrants’ human rights continue (not
the case only for migrants’ human rights)
Legal and practical problems in accessing
economic and social rights
THANK
YOU!
GJE