Human Rights of Migrants

IML CourseNew 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 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 domestic application of the Covenant, U.N. Document E/C.12/1998/24 of 3 December 1998December 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 non-citizens (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 To what extent does this principle apply to non-

citizens, particularly non-discrimination on the grounds of nationality?

2. Irregular migration Can irregular migrants expect equivalent protection

to regular migrants and/or nationals in both law and practice?

3. 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 non-nationals (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

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 examples

Case law cont.

Defence for Children International (DCI). the NetherlandsComplaint 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

Family members defined to include common law spouses, dependent children and other dependent persons

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

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 ProtocolsPalermo Protocols 2000 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 THANK YOU!YOU!

GJEGJE