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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

Rights of Migrants under International Law

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

15 June 2011


Learning objectives
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


Rights of migrants under international law
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



Migration state sovereignty
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 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 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
Source of State Responsibility

State Obligations under

International Law

Regional Law

National Law






Rights of migrants under international law
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.


Rights of migrants under international law
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
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
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



Derogation
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



Convention on the rights of migrant workers and members of their families cmw
Convention on the Rights of Migrant Workers and Members of their Families (CMW)

Non - universal ratification!


Migrant worker
“migrant worker” their Families (CMW)

  • 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
“members of the family” their Families (CMW)

  • 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
CMW Coverage Exceptions their Families (CMW)

  • 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
CMW Content - their Families (CMW)

  • 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
What the CMW does NOT cover: their Families (CMW)


Migrants1
Migrants their Families (CMW)


Cmw application to irregular migrants 1
CMW application to Irregular Migrants (1) their Families (CMW)

Part III

Human rights of ALL migrant workers and their family members

  • All fundamental rights APPLY!


Cmw application to irregular migrants 2
CMW application to Irregular Migrants (2) their Families (CMW)

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
CMW application to Irregular Migrants (3) their Families (CMW)

  • Access to basic economic & social rights

  • Safeguards in detention and expulsion

  • Possibilities of regularisation and residence rights