Transcript V1-3-Rights and Obligations of Migrants

Essentials of Migration Management
for Policy Makers
and Practitioners
Section 1.5
Rights and Obligations of Migrants
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Section 1.5 Rights and Obligations of Migrants
Learning Objectives
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increase your knowledge of the fundamental rights and obligations of
migrants
understand the human rights factors that need to be reflected in a migration
management policy and system
improve your ability to identify needed policy changes or legislative initiatives
in your setting
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Essentials of Migration Management
Section 1.5 Rights and Obligations of Migrants
Topic Titles
Topic One: International Law and Migrant Rights and Obligations
Topic Two: Human Rights Instruments
Topic Three: Security and Migrant Rights
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Essentials of Migration Management
Topic One
International Law and Migrant Rights and Obligations
Terms and Concepts
Alien
A person who is a citizen of another country and who does not
have citizenship in his or her country of residence
Binding laws
Laws "bind" (impose limitations and/or confer rights upon) only
the States that have accepted them. However, rules may bind
non-parties to a treaty if the rules are part of customary law.
Customary law
Evidence of a general practice by States recognized as law
Derogation
Restriction or suspension of rights in certain defined situations
(Continued)
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Essentials of Migration Management
Topic One
International Law and Migrant Rights and Obligations
Enter into force
To become binding. An instrument usually enters into force after
a designated number of States has ratified it and/or a certain
amount of time has passed.
Instrument
A legal document
Inalienable
Not able to be transferred or assigned to another person
Legal migrant
A migrant who possesses travel documents, (e.g., passport and
visas) or other forms of permission to enter and stay in another
country
Prima facie
“At first inspection” or “barring other factors”
State
A defined territory with a permanent population and an effective
government that exercises internal and external sovereignty
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Essentials of Migration Management
Topic One
International Law and Migrant Rights and Obligations
Stateless
The status of a person without formal citizenship in any country and
without the protection of any State
Ratification
The final establishment of consent to be bound by a treaty, usually
including the deposit of an instrument
Refoulement Forced return of a refugee to the frontiers of territories where his or
her life or freedom would be threatened on the grounds set out in the
1951 Convention Relating to the Status of Refugees
Reservation to a treaty
A unilateral statement made by a State, when signing, ratifying,
accepting, approving, or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of the treaty
in their application to that State
(Continued)
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Essentials of Migration Management
Topic One
International Law and Migrant Rights and Obligations
Rights-based approach
Puts the rights of migrants as the essential beginning
point of an approach to migration policy rather than
control over migrants’ lives
Treaty
International agreement in writing concluded between
States and governed by international law, also called
covenant, convention, protocol, or accord
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Essentials of Migration Management
Rights and Obligations of Migrants
Topic One
International Law and Migrant Rights
and Obligations
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Topic One
International Law and Migrant Rights and Obligations
Important Points
1.
Differential treatment of citizens and non-citizens, both under international
law and in State practice.
2.
The migration and human rights nexus.
3.
There are a number of limitations on the protection of the rights of
migrants under international human rights law.
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States are allowed to derogate from certain rights in times of national
emergency, and in doing so distinguish between citizens and aliens.
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In many international human rights instruments, a distinction is drawn in
certain circumstances between the rights of migrants who are legally on
State territory and those who are irregular migrants.
(Continued)
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Essentials of Migration Management
Topic One
International Law and Migrant Rights and Obligations
4.
5.
Under general human rights law, a “hierarchy” of beneficiaries is
established:
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citizens enjoy the fullest rights,
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followed by migrants lawfully within State territory, and finally,
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migrants in an irregular situation.
Irregular migrants are most in need of international protection. Their lack of
legal status or recognition makes them particularly susceptible to abuse,
exploitation, and denial of their most basic human rights.
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Essentials of Migration Management
Topic One
International Law and Migrant Rights and Obligations
Obligations of Migrants
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There is no body of international law or customary law that governs the
obligations of migrants toward the State that corresponds to the law on human
rights.
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Migrants have an obligation to respect the authority of States.
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According to international law, migrants are required to comply with the
national legislation of the host country.
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A host country is not required to accept practices that violate national or
international law.
(Continued)
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Essentials of Migration Management
Topic One
International Law and Migrant Rights and Obligations
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Policy makers need to recognize that longstanding and valid assumptions that
migrants will integrate, will learn the language, and will respect the culture of the
host country are not international legal obligations.
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Essentials of Migration Management
Rights and Obligations of Migrants
Topic Two
Human Rights Instruments
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Topic Two
Human Rights Instruments
Important Points
1.
The Universal Declaration of Human Rights. Adopted by the United Nations
General Assembly in 1948, the Declaration was intended as “a common
standard of achievement for all peoples and nations." Its thirty articles cover a
wide range of human rights including the following:
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right to life, liberty and security of person (Article 3)
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prohibition of slavery or servitude (Article 4)
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prohibition of torture or inhuman or degrading treatment or punishment (Article 5)
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prohibition on retroactive penal legislation (Article 11)
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right to respect for private and family life, home and correspondence (Article 12)
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right to leave any country and to return to one’s own country (Article 13)
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right to freedom of thought, conscience and religion (Article 18)
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right to freedom of expression (Article 19)
(Continued)
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Essentials of Migration Management
Topic Two
Human Rights Instruments
2.
Article 2 of the Declaration defines the fundamental principle of nondiscrimination, which is highly relevant in the migration context.
3.
The International Covenant on Economic, Social and Cultural Rights and The
International Covenant on Civil and Political Rights
4.
The International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD)
5.
The Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW)
6.
The Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment
(Continued)
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Essentials of Migration Management
Topic Two
Human Rights Instruments
7.
The Convention on the Rights of the Child
8.
The International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families
9.
Many regional human rights instruments provide similar rights guarantees,
and apply to all persons within the jurisdiction of the contracting parties.
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Essentials of Migration Management
Rights and Obligations of Migrants
Topic Three
Security and Migrant Rights
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Topic Three
Security and Migrant Rights
Important Points
1.
Security is increasingly being understood to refer primarily to protection
against crime and terrorism.
2.
Security concerns are often given as a reason to restrict or suspend the
rights of migrants.
3.
Migration procedures are becoming tools to combat terrorism; rights of
migrants in terms of equality of access to justice procedures and civil liberties
are in danger of being sacrificed in the “war against terrorism."
4.
An important challenge for policy makers is to find the balance between an
approach to migration management within a framework of control and an
approach in which human rights are a fundamental component.
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Essentials of Migration Management
Topic Three
Security and Migrant Rights
Balanced Policy Development
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Before rights can be respected, it is necessary to know exactly what they are.
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Knowledge of the correct standards for assessing rights violations works best
when all people who enforce laws, or border controls, have this knowledge and
it is not the exclusive domain of a few senior officials.
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Non-governmental organizations (NGOs) have an important role in helping
governments to achieve these measures.
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Training is an important tool to use as widely as possible so that knowledge can
be provided to strengthen and connect security and border control with the
exercise of State authority.
(Continued)
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Essentials of Migration Management
Topic Three
Security and Migrant Rights
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National legislation should incorporate the most important international
standards and thereby contribute to a framework for effective migration policy
and administration.
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Actions taken by Governments should be authorized by law.
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There should be a “prohibition against arbitrariness.”
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Once the main human rights instruments are adopted and implemented, an
independent body should be set up to monitor implementation of laws and
seek remedies for violations.
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Government actions, decisions, and laws should be open to the public in order
to be transparent.
(Continued)
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Essentials of Migration Management
Topic Three
Security and Migrant Rights
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Actions by a government should be proportional to the final goal.
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The principle of proportionality requires that where measures are taken that
may violate certain human rights, then these measures must be reviewed at
regular intervals by independent national bodies.
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The principle of proportionality requires that measures be specific and
targeted rather than generalized.
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Law enforcement agencies have a responsibility to gather information and
assess who is presenting a security risk or potentially presenting a risk.
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Essentials of Migration Management
Last Slide
Section 1.5
Rights and Obligations of Migrants
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