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Human Rights of Migrants

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  1. Human Rights of Migrants IML Course New York, 11-13 June 2008 Kristina Touzenis

  2. What are Human Rights? • What/who do they protect against? • Who has obligations? • Who can enforce? • Who implement?

  3. SHORTHistory • 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...

  4. UDHR – binding? • Division of ICCPR and ICESCR • There is no hierarchy of rights – but sometimes rights need to be balanced against each other

  5. 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

  6. 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

  7. 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.

  8. Levelsof Obligations • Respect • Protect • Promote/Facilitate • Fulfil

  9. 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.

  10. SubjectiveRights • 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.

  11. Economicand Social Rights • Freedom – to starve or be sick? • NOT a right to receive funds • Interdependence between rights

  12. ESCRcont. • 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.

  13. 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

  14. 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

  15. 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)

  16. 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

  17. 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)

  18. 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

  19. 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

  20. 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....

  21. Specificprotection • 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

  22. 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)

  23. 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

  24. 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)

  25. 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

  26. 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

  27. Internationalcriminal 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

  28. Three problematic areas • Principle of equality and non-discrimination • To what extent does this principle apply to non-citizens, particularly non-discrimination on the grounds of nationality? • Irregular migration • 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?

  29. 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

  30. 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)

  31. 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.

  32. 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

  33. 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

  34. 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

  35. 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

  36. Caselaw 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).

  37. 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.

  38. 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).  

  39. 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

  40. 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)

  41. 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

  42. 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)

  43. 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.

  44. 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

  45. Other rights important for migrants/migration?????

  46. Rightto Physical Integrety • Right to LIFE • Osman v. UK • LBC v. UK

  47. Torture? • Maltreatment • Personal Liberty and Security • Family Life

  48. Conventionon 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

  49. Conventionon 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)

  50. Conventionstructure • 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