Rights of migrants under international law
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Rights of Migrants under International Law. International Migration e-learning course in preparation of IDEA Youth Forum 2011 15 June 2011. Learning Objectives. At the end of the presentation, participants should have a clearer understanding of: The role of state sovereignty

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Rights of Migrants under International Law

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Rights of Migrants under International Law

International Migration e-learning course in preparation of IDEA Youth Forum 2011

15 June 2011


Learning Objectives

At the end of the presentation, participants should have a clearer understanding of:

  • The role of state sovereignty

  • The contexts of the different legal regimes

  • An overview of human rights norms

  • The importance of the Intl. Convention of the Rights of All Migrant Workers


Flow

First part:

  • Introduction on migratory status vis-a-vis the State

  • The international legal regimes

  • Question and answer session

    Second part:

  • International human rights principles & norms

  • The Intl. Convention on Migrant Workers

  • Question and answer session


First Part


Migration & State Sovereignty

  • Question of legal jurisdiction: who is responsible for a migrant’s rights?

    • Territorial (origin, transit, receiving)

    • Nationality

    • Legal long-term residence


State Sovereignty on Borders

State right to control who enters its territory

  • Exceptions:

    • National law in accordance with international obligations

      • To return: may include long-term non-nationals

      • Family reunification

    • Regional accords:

      • e.g. EU free movement (Schengen); ASEAN pact

    • International state obligations

      • Non-refoulement (refugees)


State Sovereignty in its Territory

State right to expel

  • Limitations:

    • National law in accordance with international obligations

      • To remain in the territory – for long-term non-national residents according to requirements

      • Family reunification

      • Victims of trafficking

    • Regional accords: e.g. EU law

    • International state obligations

      • Non-refoulement, regardless of migrant status

      • Procedural safeguards for lawful residents & less for irregular migrants


Source of State Responsibility

State Obligations under

International Law

Regional Law

National Law


3 Relevant International Regimes


Question and Answer Session for Part 1


Second Part


Everyone has human rights


ALL

Principle of Non-Discrimination (ICCPR Art. 2(1))

  • to respect and ensure to all persons

  • within its territory and subject to its jurisdiction

  • human rights

  • without distinction of any kind,

  • such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.


ALL

Principle of Equality (ICCPR Art. 26)

  • to respect and ensure to all persons

  • equality before the law

  • as well as equal protection of the law


Basic, fundamental human rights

  • Customary prohibitions: torture; slavery; genocide

  • Civil and political rights: life, liberty, speech, expression, assembly, association, etc.

  • Economic, social and cultural rights: health, housing, food, water & sanitation, marriage, cultural identity, etc.

  • Rights of a “group”: children, gender, minority, disabled, etc.


Are there limitations to these rights?

YES

(1) Legitimate discrimination; or

(2) “Derogation”

NO

For non-derogable rights:

  • Fundamental prohibitions

  • Non-refoulement

  • Life and Security (arbitrary detention; mistreatment in detention)

  • Racial discrimination

  • Freedom of thought & Religion

  • Returning to one’s country

  • Equality before the law


Differentiation between National & Non-Nationals


Derogation

Acceptable Grounds for Derogation

  • protection of national security or public order or public health

  • public emergency threatening the life of nations/democratic societies

  • Limitation of procedural grounds against expulsion on national security grounds


Migrants


Convention on the Rights of Migrant Workers and Members of their Families (CMW)

Non - universal ratification!


“migrant worker”

  • a person

  • who is to be engaged, is engaged or has been engaged

  • in a remunerated activity

  • in a State of which he or she is not a national.


“members of the family”

  • persons

  • married to migrant workers or

  • Having a relationship that produces effects equivalent to marriage,

  • their dependent children and other dependent persons

  • recognized as members of the family


CMW Coverage Exceptions

  • Diplomats & international civil servants (including official development workers)

  • Investors;

  • Refugees and stateless persons

  • Students and trainees;

  • Seafarers and workers on an offshore installations


CMW Content -

  • Part I – definition and scope

  • Part II – the principle of non-discrimination

  • Part III – human rights of ALL migrant workers and their family members

  • Part IV – other rights for migrants who are documented or in a regular situation

  • Part VI – promotion of equitable, humane and lawful conditions, particularly for migrants in an irregular situation

  • Part VIII – general provisions on substantive application of the Convention


What the CMW does NOT cover:


Migrants


CMW application to Irregular Migrants (1)

Part III

Human rights of ALL migrant workers and their family members

  • All fundamental rights APPLY!


CMW application to Irregular Migrants (2)

Part VI

  • promotion of equitable, humane and lawful conditions, particularly for migrants in an irregular situation

    • State obligation to consult /cooperate to ensure labour migration takes place in humane and sound conditions

    • Provisions for sanctions against smugglers, traffickers and employers


CMW application to Irregular Migrants (3)

  • Access to basic economic & social rights

  • Safeguards in detention and expulsion

  • Possibilities of regularisation and residence rights


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