immigration & refugee law françois crépeau united nations special rapporteur on the human...

Immigration & Refugee Law

François CrépeauUnited Nations Special Rapporteur on the Human Rights of Migrants

Hans &Tamar Oppenheimer Professor of Public International LawMcGill University

McGill 2014

Outline1. A Constant of Civilisation

2. Territorial Sovereignty Matters

3. Irresponsible Political Discourses

4. Migrants have rights

5. The Rational Human Rights Discourse on Migration Doesn’t Convince

6. Discreet and Tightly Controlled Regional Consultative Processes

7. The Inception of a Universal Dialogue

8. Conclusion: Migration is not an anomaly

Crépeau McGill 2014

Section 1 A Constant of Civilisation

A complex phenomenon An economic transfer A development driver A demographic objective A source of acculturation An object of political discourse A security issue/fantasy A challenge to territorial sovereignty A clandestine phenomenon An individual and collective enterprise


Migration is not an anomaly We are all migrants

Migration is the normal human condition, not an anomaly. Migration is at the heart of many civilisations (Exodus, Odyssey,

Hegira), linked to the traditional law of hospitality. Settlement is recent and unstable: rural exodus, pilgrimages,

“snowbirds”, seasonal workers, expats, foreign students, retirees 3.1 % of world population : ±214M in 2011. Migration from poverty and violence towards prosperity and

stability is mankind’s history: We can slow it temporarily; We can’t stop it in the long term; We would do the same in their place: we don’t have the moral

highground


Humans Spread Across Globe Hominids

Arose in Africa 2 million years ago Migrated throughout Eurasia

Homo-Sapiens As a species arose c. 200,000 years ago Arose in East Africa, The Horn of Africa

Hunter-Gatherer Society Nomads followed game, gathered seeds Conduits across Strait of Gibraltar, Sinai Southwest Asia reached c. 70,000 BCE East Asia reached c. 60,000 BCE Australia reached c. 50,000 BCE Europe reached c. 40,000 BCE North America reached c. 20,000 BCE South America reached c. 15,000 to c. 12,000 BCE All Pacific Islands not reached until c. 1000 CE

Proof We use DNA, genetic drift, chromosomes, archaeology as proof We look at languages and linguistics


Genographic Project DNA studies suggest

All humans come from group of African ancestors who began moving out of Africa about 70,000 years ago

Project to chart new knowledge on migratory history of human species through 2014

Led by National Geographic and IBM with cutting-edge genetic/computational technologies

Components of project Gather field research data from indigenous and traditional peoples Invite general public to join Use proceeds to further field research and support indigenous conservation and

revitalization projects Project is anonymous, non-medical, non-political, non-profit

and non-commercial and all results will be placed in public domain following scientific peer-reviewed publication



Multiple Factors “Push Factors`:

Fleeing from poverty and violence, resulting from global economic and social imbalances

Individual and collective aspirations: migration is always an individual trajectory in multiple social spaces

“Pull Factors” : Economic labour needs Free movement of goods, services and capital “Golden legend”

Irregular Migration results from: Unrecognised labour needs in countries of destination Emigration needs in home countries Lack of legal avenues to cross borders and strict border

controls

Push Factors Not enough jobs Few opportunities "Primitive" conditions War / generalised violence Political fear Human rights violations Slavery / Trafficking Religious oppression Oppression by landlords Loss of wealth Loss of land Poor medical care Poor housing Poor education Poor chances of courtship Natural disasters Pollution

Pull Factors Job opportunities

(recognised or not) Better living conditions Political and/or religious

freedom Human rights guarantees Access to justice Enjoyment Education Better medical care Security Family links Better chances of finding

courtship “Get rich easily”


Immigration Demand Permanent migration (sometimes)

Highly skilled, skilled, rich Temporary migration (more and more)

Low skilled, unskilled Major trend in past ten years Labour « flexibility » implies status vulnerability

Irregular migration (always) Competitive sectors with low profit margins Agriculture, hospitality, domestic, caregivers, construction... Little sanction of « clandestine employers »

For irregular and vulnerable migrants, the precariousness of their status is central to their exploitation:

Creates the fear of being arrested, detained and deported. Creates a « competitive advantage » for the employer


Sociology of Migration Economic factors are main cause

Lose of job or job opportunities Better pasture, farm land; more pay

Counter-migration Every migration flow generates return migration Many people go abroad to work, study temporarily

Majority of migrants move short distance Urbanization is the most common Moving for a job locally is another

Urbanization Migrants moving long distances choose big-city destinations

Urban residents less migratory than rural residents Cities offer too many opportunities and benefits If one immigrates, one tends to go urban to urban not to rural

The youth migrate Families less likely to make international moves than young adults Rare to see whole family migration


Mapping migration since 1945


Sovereignty v. Human Rights

The migrant illustrates the conflict between: Territorial sovereignty paradigm (old, situated)

Host State decides who enters and stays, who is a member of the group (citizens);

The foreigner has no rights a priori in the host State, only in the home State (citizenship);

Host State treats the foreigner as it wishes (administrative discretion), under the rule of reciprocity.


Sovereignty v. Human Rights

Human rights paradigm (recent, universal) Anyone has inherent rights opposable to any

Power; Host State must respect the rights of all,

everywhere, at any time; The writers of the international system of HR did

not think migrants would use them: States are feeling “trapped” by their international commitments.


Equal Paradigms

In democratic domestic law, human rights now prevail over parliamentary sovereignty through constitutional guarantees and an independent judiciary

In international law, no normative hierarchy has been established and the balance depends on persuasion and events.


Section 2

Migrants have rights

The international HR regime

A complex regime of standards and institutions Universal and regional mechanisms National constitutions, NHRIs and judiciary Vienna Declaration, 1993: « All human rights

are universal, indivisible and interdependent and interrelated »

Rights belong to « everyone »


« Charte des droits de l’homme »

Déclaration universelle des droits de l’homme de 1948

Pacte international relatif aux droits civils et politiques de 1966

Pacte international relatif aux droits économiques, sociaux et culturels de 1966


Les régimes proches

• Convention pour la prévention et la répression du crime de génocide, 1948

• Conventions de Genève relatives au droit humanitaire, 1949, et leurs protocoles de 1977

• Convention relative au statut des réfugiés, 1951, et son protocole de 1967


Les conventions spécifiques• Convention internationale sur l'élimination de toutes les formes

de discrimination raciale, 1965• Convention sur l'élimination de toutes les formes de

discrimination à l'égard des femmes, 1979• Convention contre la torture et autres peines ou traitements

cruels, inhumains ou dégradants, 1984• Convention relative aux droits de l'enfant, 1989• Convention internationale sur la protection des droits de tous

les travailleurs migrants et des membres de leur famille, 1990• Convention internationale relative aux droits des personnes

handicapées, 2006 • Convention internationale pour la protection de toutes les

personnes contre les disparitions forcées, 2007Crépeau McGill 2014

Two rights belong to the citizen only

International Covenant on Civil and Political Rights Article 25: The right to take part in the conduct of public

affairs, to vote and to be elected; Article 12 (4): No one shall be arbitrarily deprived of the

right to enter his own country.

Canadian Charter of Rights and Freedoms Article 3: Right to vote and be elected; Article 6: Right to enter and remain in Canada; A Canadian exception, article 27: The right to education

in the language of the minority.


All other rights enjoyed by all

International Covenant on Civil and Political Rights Article 2(1): “[...] to respect and to ensure to all

individuals within its territory and subject to its jurisdiction […] without distinction of any kind […]”.

Canadian Charter of Rights and Freedom Article 1: guarantee of rights and freedoms of

“everyone”, “subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.


In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, “everyone” has been interpreted as encompassing “every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.”

A whole chapter of the Immigration Act was declared unconstitutional following the request of an asylum seeker.

Jeffrey Simpson, a columnist at the Globe and Mail, never got over it!


HR for ALL In the international HR system, all migrants

have Right to equality and freedom from discrimination Freedom of expression, association, ... Right to an effective remedy Right not to be sent back to torture Children’s rights Decent work conditions Even in a security context: Juge Noël (FC)


The foreigner has the right to equality International Covenant on Civil and Political Rights

Articles 2 & 26: “without distinction of any kind, such as […] national or social origin”.

Canadian Charter of Rights and Freedoms Article 15: “every individual […] has the right to the equal protection

and equal benefit of the law without discrimination […] based on race, national or ethnic origin”.

The interpretation of this right is difficult and courts tend to avoid complex analysis, and often refer to the saying considering immigration as a privilege. Andrews v. Law Society of British Columbia, [1989] 1 SCR 143 Regina v. Immigration Officer at Prague Airport, [2004] UKHL 55.


The foreigner has the right to a remedy

International Covenant on Civil and Political Rights Article 2 (3) a): “any person whose rights or freedoms as

herein recognized are violated shall have an effective remedy”.

Canadian Charter of Rights and Freedoms Article 24: “Anyone whose rights or freedoms, as

guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”


Almost every de jure appeals of the Immigration and Refugee Protection Act have been replaced by judicial controls, on permission.

One still cannot appeal a refugee status determination decision, very often based on facts or credibility, whereas consequences might be more serious than those of a criminal trial.


The foreigner cannot be send back to persecution or torture

Convention relating to the status of refugees (1951) Article 33(1): Prohibition of “refoulement” ; Article 33(2): Security exception.

Convention against Torture (1984) Article 3: Prohibition of refoulement of any person

where he would be in danger of being subjected to torture;

No exception, even during wartime.


In Europe, deportation to torture is absolutely prohibited: ECHR, Saadi v. Italy, request no. 37201/06, 28 Feb. 2008.

Canada was horrified of being condemned for “torture”: Khan v. Canada, Communication No. 15/1994: Canada. 18/11/94, CAT/C/13/D/15/1994.

Canada permits deportation to torture in “exceptional cases”: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.

“Maybe” Canada deports to torture: Dadar v. Canada, Communication No. 258/2004: Canada. 05/12/2005, CAT/C/35/D/258/2004.


The foreign child is protected against discrimination

Convention on the Rights of the Child (1989) Article 2(1): “respect and ensure the rights set forth in the

present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s […] national origin […] or other status”

Article 2(2): “the child is protected against all forms of discrimination or punishment on the basis of the status […] of the child’s parents”

Article 3: “In all actions concerning children, […] the best interests of the child shall be a primary consideration.”


In Montreal, as opposed to Toronto, schools’ administrations do not ask for the parents’ immigration documents.

In a pediatric hospital of Montreal, the managers asked the medical staff to give undocumented migrant families away to the immigration enforcement agency.


The migrant worker has the right to dignity

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) Opened for signature in 1990, entered into force in 2003. Not ratified by any of the “Global North” states. Yet, it very often simply specifies the application of already

existing protections contained in other general instruments to migrant workers.

Its principal “flaw” is to specify the rights of undocumented workers, rights that States do not recognize even if undocumented work is part of economic competitivemess strategies.


The migrant has rights even in a securitized context

Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350: “Many of the principles of fundamental justice were developed in

criminal cases, but their application is not restricted to criminal cases: they apply whenever one of the three protected interests is engaged. Put another way, the principles of fundamental justice apply in criminal proceedings, not because they are criminal proceedings, but because the liberty interest is always engaged in criminal proceedings.”

“The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process […]”


In two recent decision related to Mr Harkat’s case (2009 FC 553, 28 May 2009; 2009 FC 659, 23 June 2009), Justice Noël severely rebuked the authorities for unacceptable behaviors: The Canadian Security Intelligence Service “forgot” to

mention that an important source in this case was poorly reliable, when ne cross-examination is possible;

A few weeks later, an early search of Mr Harkat’s premises was found abusively intimidating.

Justice Noël does not treat the foreigner in a different manner. His “cold anger” with the authorities’ abuses of power is impressive.


The judiciary as only defense line

In the absence of political mobilisation, Courts are the ultimate defender of migrants’ rights: No electoral pressure Legitimacy based on the logic of law In many cases, the protection of the rights of vulnerable

populations did not come only from governments, but also from tribunals: factory workers, women, aboriginal peoples, minorities, detainees, gays & lesbians, etc.

Foundational tripod of democracy: Representation – Human Rights – Rule of Law


Section 2 Territorial Sovereignty Matters

Nation State Implies Closure Part of our foreseeable future Criteria: people, territory, government Territorial and Social Closure

Government of population includes identification and exclusion of Outsider, Foreigner, Non-Citizen

Citizenship is social modus: jus sanguini/soli, multiple citizenship…

Physical separation is territorial modus: border controls, diversification of the concept of border…

EU shows a way forwardCrépeau McGill 2014

Migrants Selection

Selection of migrants is an attribute of sovereignty

Choices are possible: permanent residents, TMW, family members, refugees selected abroad…

Increasing constraints: nuclear family, refugees and asylum seekers, HR guarantees, ...


The anti-immigration “arsenal”

States have established an arsenal of mechanisms to “fight” irregular migration: Deterrence measures Containment measures Irregular migration is now part of the global

security discourse: Domestic security since 1990: Schengen International security since 2001


Deterrent measures

Acceleration of asylum processes; Elimination of appeals; Restricted access to work permit; Reduced legal aid and social safety; Criminalization of humanitarian aid to irregular

migrants; Excessive penalties for migrant smuggling; Safe third country agreements; Increased detention.


Containement measures Visa regimes; Carrier sanctions; Border agents’ training; “International zones” in airports; Interdiction and interception mechanisms abroad; Immigration security intelligence; Exchange between nominative databases; Regional economic cooperation conditionality; Militarization of borders and seas; Externalization of asylum procedures; Rejection of international human rights law.


Exercising power over irregular migrants Deterrence measures aim at limiting the

empowerment of migrants: Make life difficult in order to increase subjection. Maintain the vulnerability through the absence of status.

Preventing “undesirable” migrants to access the legal, social and political tools that could limit the capacity of State authorities to wield a large discretionary power over irregular migrants.

Hope that this vulnerability will deter other candidates to irregular migrantion … but not too much, since the economy needs them.


A migrant without dignity Dignity is the capacity to be an agent of one’s destiny,

to have the freedom to exercise options regarding one’s life

Respecting the dignity of a person means protecting one’s capacity to make choices for oneself, recognising the individual as a subject (not simply an object) and as a rightsholder

Kant’s categorical imperative Sen-Nussbaum’s capability approach to agency Issue: if the irregular migrant’s dignity is protected,

the value of competitive advantage is lost


Section 3Migrant workers’ precariousness is “constructed”


Migrant workers’ precariousnessis “constructed”

Temporary labour migration (regular or not) can be beneficial for all

• Migrants come because there’s a labour market (underground or regular) for them

• The competitiveness of several economic sectors rests on using “cheap labour”: agriculture, construction, hospitality, care-giving, extraction, fisheries…



But policies often create a dangerous employment relationship: migrant workers accept working conditions that residents would refuse:

• Temporary migrant workers: Kafala, sponsorship• Irregular migrants employed by “illegal

employers”?• Exploitation? Trafficking?• “Vulnerability” vs. “precariousness”



Need to empower migrant workers, in order to reduce precarity: Recruitment practices streamlined: debt-free, informed, registered contract Identity and travel documents retained Residence permit not tied to labour contract or employer Complaint mechanisms and recourses, without fear of retaliation,

detection, detention or deportation Bank accounts verified Labour inspections focussed on working conditions Support for lawyers, NGOs and unions Pathways to citizenship after a nember of years Regularisation for irregular migrant workers who have worked a long time


Section 3 Irresponsible Political

DiscoursesCrépeau McGill 2014

No accountability Politicians aren’t accountable for what they say about

irregular or vulnerable migrants They don’t vote: politically insignificant They don’t complain: legally insignificant Good discursive scapegoats

No negative political consequences of pointing fingers at migrants and making outrageous claims

In electoral democracies, there’s no incentive for the executive or legislative powers to protect migrants’ rights

Actually, there’s electoral pressure to the contrary.


Paradoxical representations One lumps together:

Identity, territory, nation, culture, values, civilisation… Foreigner, risk, criminality, terrorism, multiculturalism... Schengen (1990): defines international criminality as

including drug trafficking, arms trafficking, terrorism, mafia-type criminality ... and irregular migration

“Liquid”, “fungible” langage : “Flux”, “waves”, “flows”, “tsunami”, “floods”, “trickling”,

“containment” Images of an undetermination: no individual identity Evokes age-old fears: invasions, floods, toxic waste...


Politicians play on perceived threats

Our electoral democratic systems drive politicians to hyberboles that remain unchecked: F: “2M immigrants, 2M unemployed” CH: Minarets as nuclear warheads AU: people in the boats could be terrorists

Security policies disproportionately affect foreigners as terrorism is mentally externalised

No alternative policy discourse, due to the absence of any political mobilisation in favour of migrants


The agenda of securitising migration

“Reappropriation of the border” in the political discourse: Heightened tension around border controls Alarmist discourse on the threats that lie beyond

the border “Us & Them”: defending “National Identity”,

“Canadian values”, “Britishness” Maintains precariousness of status for many

migrants: pliant workforce Migration is part of a new international

security paradigm, even before 9/11.


The agenda of securitising migration Migration controls are part of the phenomenon of

“securitisation of the public space”: water security, communication security, food security, environmental security, energy security, economic security, migration security…

Many unacceptable measures are justified by security: Exchange of personal data btw immigration security

intelligence services. Long term detention w/o judicial review.

Many administrative practices are beyond any control by judges, NGOs and medias.


Criminalising a non criminal activity State authorities have increasingly used the language of crime

when discussing irregular migration, when in fact: 99,9% of irregular migrants present no security threats 9/11 terrorists were not irregular migrants

Crossing borders without the requested documentation may be in violation of migration or administrative laws, but per se not a crime:

Not a crime against persons: no one’s hurt Not a crime against property: nothing’s stolen or broken Not a crime against national security

Smuggling is a direct consequence of the mismatch btw the migration needs and the absence of official channels:

“Nasty business but saves lives” (CCR) They’ve always existed : Casablanca! Distinguish from human trafficking: low “dangerousness” Co-responsibility is never acknowledged


“Sealing the border” is a fantasy It implies levels of violence incompatible with liberal

democracy and rule of law Irregular migrants respond to market demands:

Huge unrecognised labour market offering jobs at exploitative conditions

No migration to countries that do not offer jobs All irregular migrants do work: no death from hunger. They fulfil essential economic and social functions: agriculture,

health services, hotels, domestic work, etc. This cheap labour enhances the competitiveness of Global North

economies Employers are generally not targeted in the fight against

illegal employment. Yet, many politicians continue to claim this as their objective.


Political discourse and public debate But the discourse criminalising migrants has political/electoral

advantages: Complexity of migration issues make them unsuitable for media-

degradable discourse Politicians can’t recognise publicly the porousness of democratic

borders Creating the discourse implies defining the terms of debate: far-right

has dominated the policy debate: “good questions” (Laurent Fabius) Creating anxiety by stressing territorial sovereignty in a nationalist

discourse and appearing to offer “reasonable” responses (although they are disconnected from reality)

No “pushback”, as there’s no mobilization from migrants, not in favour of migrants: they are not a constituency.

The phenomenon of “otherisation” of the foreigner allows for measures that would horrify us if they were applied to our children.


Root causes remain

Democratic anti-immigration policies will fail as they don’t address the root causes : Global social inequalities Contradictions of Global North capitalism Failure of development policies Migration is in itself a development policy Failure to acknowledge and recognise the

individual migrant’s agency: one’s ability to imagine and craft a future for oneself and one’s children


Courts and treaty bodies have taken up the issue

National courts defend migrants’ rights CAT and HRCttee are discussing migration

issues, when examining either periodic reports, or individual communications.

The ECHR, ECJ and IAHRCom and Court have also been increasing pressure on States in relation to migration issues.

They have raised the awareness about migrants’ rights in international circles.


Section 5The Rational Human Rights Discourse on Migration Doesn’t Convince


Jonathan Haidt’s six moral senses

Care Fairness Freedom Authority Loyalty Sanctity

Jonathan Haidt, The Righteous Mind - Why Good People are Divided by Politics and Religion, 2012.

Helped me understand why a reasonable human rights discourse could be experienced as irrelevant

What follows is a free interpretation by a non-psychologist. Please be indulgent!


Emotion generally rules reason We form our moral judgment in a way that

resonates with the moral senses we “feel”: we are not as “rational” as we think we are. Elephant-Mahout analogy

Liberals use the three first moral senses: care, fairness and freedom.

Conservatives use all six senses. This may explain why conservatives are

mostly impervious to the human rights discourse on irregular migration.


The Authority Principle States are sovereign and have the authority to decide who

enters and who stays on their territory. Analogy w. private property, house: front door, back door... Not the image of the city, where anyone can come

Irregular migrants do not respect the authority of the State. Deep seated fear of lawlessness, of losing out

Temporary migrant workers should be happy with what they are offered: if not, they can go back home.

Court judgments in favour of irregular migrants’ rights fuel more anger by appearing to sanction a “criminality” than they convince through the logic of their “rational” human rights reasoning:

Political backlash against “unelected” judges accused of ruling contrary to the moral feelings of the “majority”.

Unsaid: Sovereignty trumps human rights


The Loyalty Principle Citizenship implies loyalty:

Citizenship oath Debates on multiple citizenship Respect for local values. It is for the migrant to adapt to the host society, not the reverse:

Demonisation of “multikulti”. Citizenship presented as a family: Le Pen’s discourse on sisters and cousins

Only the citizens can be presumed to be loyal: Foreigners often presumed to only seek to benefit from welfare Foreigners must show themselves worthy of being admitted in the

“private club”. If not, it is only normal to throw them out. “Us & Them” discourse: no feeling of kinship, of human community:

hence no feeling of responsibility for such “others”. Unsaid:

Human rights are actually citizens’ rights


The Sanctity Principle However, conservatives and the faith-based

organisations which they support are often mobilised in favour of refugees.

When the sanctity of life and human dignity are at stake, their religious fiber may trigger a feeling of responsibility. This is especially true when women and children are

victims: the human trafficking and prostitution debate, This is not contradictory with the two previous

principles: Protection is based on charity, not rights.


Section 6Discreet and Tightly Controlled Regional Consultative Processes

History

Migration is part of the sovereign jurisdiction (“domaine réservé”): No tradition of multilateral discussions:

States have traditionally rejected any multilateral negotiation on an issue they consider being of purely national interest

More openness after 9/11: still reticent Bilateral/plurilateral agreements on specific borders

CDN-US Safe Third Country Agreement Readmission agreements

Many regional cooperation frameworks to control irregular migration

“Private clubs”, controlled by States, discreet or secret on their actions and on the results.

UE and Mercosur Freedom of Movement areas are exceptionsCrépeau McGill 2014

Regional Processes

History: Closure of borders of the Global North following the oil crisis of 1973 Increase in asylum claims 1978-1984 Schengen Convention negotiated 1985-1990

Fifteen regional initiatives at present: “to provide an inter-governmental regional migration forum for the exchange

of information, experiences and best practices, and overall consultation to promote regional cooperation on migration within the framework of economic and social development for the region” (Puebla Process).

“aimed at developing comprehensive and sustainable systems for orderly migration. Its purpose includes exchanging information and experiences on topics such as: regular and irregular migration, asylum, visa, border management, trafficking in human beings and smuggling of migrants, readmission and return” (Budapest Process)

IOM tries to coordinate since 2005


Europe and the Former Soviet Union

Inter-Governmental Consultations on Asylum, Refugee and Migration Policies (IGC) (1985)

North America, Europe, Australia “informal, non-decision making forum for inter-governmental information

exchange and policy debate on all issues of relevance to the management of international migratory flows.”

Private website: for member states’ officials only Budapest Process (1991):

49 States of Europe + Central Asia + 6 Silk Route countries + 7 observers + 16 IGOs (ICMPD sec.)

Priorities: 1) prevention and fight against irregular migration, 2) return and readmission and 3) asylum: in Eastern Europe & Central Asia

Söderköping Process (Cross-Border Cooperation Process) (2001) 14 States + 3 IGOs + NGOs (+ Sweden sec.) Central & Eastern Europe

CIS Conference (1996-2005) Crépeau McGill 2014

Americas and the Carribean

Puebla Process (Regional Conference on Migration) (1996) 11 States + 5 observers + 8 IGOS (IOM sec.) Regional cooperation on migration

South American Conference on Migration (Lima Declaration Process a/k/a South American Meeting on Migration, Integration and Development) (1999) 12 States + 8 observers + 6 IGOs (IOM sec.) Development; diasporas; rights of migrants; integration;

information exchange; migration statistics; and trafficking and smuggling


Western Mediterranean

Dialogue on Mediterranean Transit Migration (MTM) (2003) 37 States (including all EU) (ICMPD sec.) “aiming to build common understandings and to jointly develop

evidence-based comprehensive and sustainable migration management systems”.

5 + 5 Dialogue on Migration in the Western Mediterranean (2002)

10 States + 3 IGOs (IOM sec.) “forward-looking agenda on information exchange, joint management

of international borders, agreed forms of labour migration, migration for development, and protection of the rights of migrants”


Africa

Inter-governmental Authority on Development - Regional Consultative Process on Migration (IGAD-RCP) (2008)

6 States of East Africa + 15 + 5 IGOs “promote the common position of IGAD Member States and African Union as

provided in the AU's Migration Policy Framework and facilitate regional dialogue and co-operation in migration management”

Migration Dialogue for Southern Africa (MIDSA) (2000) 15 States of Southern Africa + 9 observers + IGOs + UN + NGOs (IOM Sec.) “MIDSA workshops bring together senior government officials from SADC

countries to discuss and agree upon migration-related issues of regional concern”.

Migration Dialogue for West Africa (MIDWA or Dakar Follow-up) (2001) 15 States of West Africa + 10 IGOs (IOM Sec.) Border management, data collection, labour migration, irregular migration,

development, remittances, migrants' rights, trafficking and smuggling, return and reintegration Crépeau McGill 2014

Asia & Oceania

Ministerial Consultations on Overseas Employment and Contractual Labour for Countries of Origin and Destination in Asia (Abu-Dhabi Dialogue) (2008)

11 Colombo Process countries of origin + 9 Asian destination countries + 7 observers + EU

Developing and sharing knowledge on labour market trends, skills profiles, workers and remittances policies and flows; building capacity for more effective matching of labour supply and demand; preventing illegal recruitment; promoting welfare and protection measures for contractual workers; developing comprehensive approach to managing the entire cycle of temporary contractual work that fosters the mutual interest of countries of origin and destination.

IOM Regional Seminar on Irregular Migration and Migrant Trafficking in East and South-East Asia (Manila Process) (1996-2011)

16 States + IOM Irregular migration and trafficking; root causes of regular and irregular migration; return

and reintegration; entry/border control; remittances; migrants' rights; capacity building; information sharing


Asia & Oceania

Inter-Governmental Asia-Pacific Consultations on Refugees, Displaced Persons and Migrants (APC) (1996)

34 States + 2 IGOs (IOM+UNHCR) Nature, causes and consequences; data collection and information-sharing; prevention and

preparedness; reintegration and its sustainability; comprehensive and durable solutions to refugee situations; trafficking in women and children; illegal immigrants/workers; people smuggling and irregular migration; emergency response and contingency planning

Bali Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime (Bali Conference/Process) (2002)

43 A+P States + 18 Global North partner States + 16 IGOs & NGOs Cooperation on : information and intelligence sharing; regional law enforcement

agencies; border and visa systems to detect and prevent illegal movements; increased public awareness in order to discourage; return as a strategy to deter people smuggling and trafficking; cooperation in verifying the identity and nationality; legislation to criminalise people smuggling and trafficking in persons; protection and assistance to victims of trafficking; opportunities for legal migration; best practices in asylum management.


Asia & Oceania

Ministerial Consultations on Overseas Employment and Contractual Labour for Countries of Origin in Asia (Colombo Process) (2003)

11 Asian States + 8 countries of destination + 7 IGOs + DIFID (IOM sec.) Protection of and provision of services to migrant workers; development of

new overseas employment markets, increasing remittance flows through formal channels and enhancing the development impact of remittances; capacity building, data collection and inter-state cooperation.


IOM’s Role

States only want to discuss with IGOs that are susceptible to help them reaching their goals: IOM, ICMPD UNHCR is unavoidable for refugees

IOM tries to establish a coordination since 2005: Global RCP Meetings: 2005, 2009, 2011 Site web:

http://www.iom.int/jahia/Jahia/policy-research/regional-consultative-processes/about-rcps




Evaluation of RCPs

The discretion State observe on this cooperation reflects the administrative discretion that States try to jealously preserve in migration issues.

The choice of institutional partners shows a clear choice to avoid debating with

Civil society On migrants’ rights

Evaluation of RCPs is sketchy: Cooperation is optimal if partners are few, have clear objectives

(essentially on technical cooperation) and show political resolve. Too big operations are “talk shops”.

Migrants’ human rights are rarely a priority



Section 7The Inception of a Universal Dialogue

No tradition

Migration is part of sovereign jurisdiction of States No tradition of multilateral discussion At best, bilateral agreements

UNGA 1988: first resolution on domestic workers 1990: International Convention on the Rights of all

Migrant Workers and their Families. Came into force in 2003 45 ratifications today “G77 Convention”: No participation from any country of the

Global NorthCrépeau McGill 2014

Reticent (United) Nations

States don’t want the UN to take over the issue 9/11: window of opportunity for multilateral dialogue UE: progressive communitisation of migration issues Free movement of persons in Mercosur since 2002 UN: SG initiates debate UN Population and Development Conference, Cairo 1994 ILO: Protection of migrant workers UNHCR: distinguishes refugees and migrants IOM: “travel agency”, but expertise on trafficking


From governance to “management”

Commission on Global Governance, 1995 Bimal Ghosh, Managing migration: time for a new

international regime?, 1993 New International Regime for Orderly Movements of

People: NIROMP Project, 1997 Consensus on new principles:

“Balanced approach”: flows “Regulated openness”: not closure “Triple win”: migrant, host country, country of origin Importance of non-State actors: IGOs, NGOs


The Special Rapporteur

1999: Creation of the mandate of the UN Special Rapporteur on the Human Rights of Migrants:

(a) Examine ways and means to overcome the obstacles existing to the full and effective protection of the human rights of migrants, and particular vulnerability of women, children and undocumented;

(b) Request and receive information from all relevant sources, including migrants themselves, on violations of the human rights of migrants and their families;

(c) Formulate appropriate recommendations to prevent and remedy violations;

(d) Promote the effective application of relevant international law;

(e) Recommend actions and measures applicable at the national, regional and international levels to eliminate violations;

(f) Take into account a gender perspective, occurrence of multiple discrimination and violence against migrant women;

(g) Identify best practices and concrete areas and means for international cooperation;

(h) To report regularly to the Council and to the General Assembly.Crépeau McGill 2014

Main function: work on discourse, perceptions and good practices

SR reports become a reference: Quoted by other IGOs and NGOs Enrich the debate Example: CRC DGD September 2012: Preparation of General

Observation on “Children on the Move” Work on document by UNICEF and OHCHR Common document with SR Violence against Children and Save the

Children

The SR can: Define a vocabulary Define issues Underline “best practices”

Objective: transform perceptionsCrépeau McGill 2014

Global Commission on International Migration (GCIM)

Created by SG in 2003 Long consultation of States / stakeholders 2005 Report not really innovative:

Territorial Sovereignty is affirmed Innovative proposals are withdrawn under States’ pressure No normative or institutional proposal

Two consequences in 2006: Creation of Global Migration Group High Level Dialogue on Migration and Developement, first

UNGA meeting dedicated to migration issuesCrépeau McGill 2014

SRSG + HLD 2006

SRSG on Migration and Development: P. Sutherland SRSG has

Written the SG’s 2006 Report on Migration and Development that was presented to 2006 HLD

Organised the 2006 High Level Dialogue Been a driving force behind the GFMD since 2007

SRSG prepares the next 2013 HLD


Global Migration Group

UN interagency coordination group: 15 UN agencies + IOM Overcome the reluctance of agencies to debate an issue that

is complex and marginal to their mission Disseminates information on practices

Chair changes every 6 months: erratic Uneven participation, but some interesting outcomes:

2010: Irregular migration 2011: Migration and Youth

Reforms under wayCrépeau McGill 2014

GFMD: Global Forum on Migration & Development

Direct result of 2006 HLD “Government-led, informal, non-binding and voluntary process” Structured outside UN: IOM will offer secretariat

SRSG was initiator: Initially, no mention of HR + NGOs excluded

Today, HR and NGOs are part of the process Themes for 2011 regional meetings:

trade and labour mobility; recruitment of workers for overseas employment ; care and domestic workers; cooperation strategies among states to address irregular migration; rural co-development; migration profiles as tools for evidence‐based migration policies; best practices. Crépeau McGill 2014

HLD 2013

Second UNGA meeting on migration issues SRSG is looking for themes and proposals that could

mobilise States Wants concrete institutional, normative and

programmatic results: deliverables We don’t know yet if:

There will be an outcome document If so, whether it will be creative or not


Towards a multilateral dialogue

There is some movement at universal level States remain very reluctant But sovereignty is slowly eroded Demonstrated by the speed and modalities of

the adoption of the 2011 ILO Convention Concerning Decent Work for Domestic Workers

At least, States are discussing their objectives and practices



Conclusion.Migration is not an anomaly

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Solution 1: Mainstreaming Migrants’ Rights

Need to fight the divorce between the State’s sovereign powers to exclude and our human rights regimes (national, regional, universal)

Migration should be mainstreamed in the larger discourse on human rights and social diversity.

Diversity, multiculturalism, anti-racism and anti-discrimination policies are key tools

Fighting exclusion, discrimination, marginalisation, stigmatisation, racialisation and violence for ALL

Human rights should be mainstreamed inside national migration policies and international migration cooperation agreements

Need to overcome the absence of political mobilisation


Solution 1: Normative Mainstreaming

Need for migration policies to be buttressed by all the normative and institutional gains we have made over a century of democratization:

Reduce administrative discretionary powers Fight the idea that immigration is only “a privilege” Fight “State of exception” (Agamben) Empower the marginalised to use legal tools:

Empowerment will come from effective access to justice Without fear of being arrested, detained or deported

Democracy = Representation + Human rights + Rule of Law Fight populist attacks on the illegitimacy of “unelected judges” faced

with majority choices


Solution 1: Institutional Mainstreaming Institutions (courts, administrative tribunals, NHRIs, labour

inspectors…) must all mainstream migration in their practice and combat stereotypes:

CDPDJQ has embraced migration in 2009 FRA has taken up the issue

Need for well-trained HR-sensitive immigration enforcement corps Need to create “firewalls” that allow all migrants, including

irregular migrants, to access public services (social rights): without fear of being arrested, detained and deported, without civil servants being made auxiliaries of immigration

enforcement: police, labour inspectors, health and safety inspectors, school personel, health care providers, etc.

without the information collected by civil servants being accessible to immigration enforcement


Solution 1: International Mainstreaming

At regional level, need to develop and interconnect free-movement-of-persons areas: EU, Mercosur, Ecowas…

At international level, need to mainstream migration and HR in various agendas: Post-2012 Rio+20 sustainable development agenda: “address

international migration through international, regional or bilateral cooperation and dialogue, and a comprehensive and balanced approach, recognizing the roles and responsibilities of countries of origin, transit and destination in promoting and protecting the human rights of all migrants, and avoiding approaches that might aggravate their vulnerability” (outcome document).

Post HLD 2013 migration & development agenda Post-2015 sustainable development goals agenda

International cooperation on migration issues should rest on formal commitments, allowing individuals to access justice and accountability mechanisms for all HR violations.


Solution 2: Free Movement The European Union constructed a free movement

regime for workers and individuals within its territory. Long-term integrated conception of the Common Market Control of persons at internal borders is transferred to

external borders Successive enlargements.

Similar experiences in Mercosur, Ecowas: regional needs for free movement of persons

Other free trade regimes do not include free movement of persons: NAFTA, Pacific Alliance, ASEAN


Solution 3: Local Citizenship Migrants should be considered as local citizens,

like any person who lives and works in the city: They all work and contribute to the economy; Their exploitation contributes to the competitiveness of

several sectors of our economy; They pay taxes on everything they buy or rent; The lack of administrative status recognizing their rights is

the cause of their vulnerability. To give them a coherent status would help them to

better fight against exploitation.


Solution 3: Local Citizenship Some contemporary examples:

San Francisco: the police does not control the immigration status of citizens in order to be able to enforce its “law & order” agenda (collaboration with the public is key);

Toronto: “don’t ask, don’t tell” policy in schools; Massachusetts: the state issues driver licenses without verification of the

immigration status; Portugal: irregular migrant children are registered with the ministry of social

affairs, to allow them to access schools and hospitals, but a firewall prevents immigration enforcement from accessing this information.

Paris: 28 health centers for irregular migrants, administered by “Médecins du Monde”. Now one in Montreal.

Québec: The vaccination campaign against AH1N1 was for everyone, without checks on whether one was part of the public health insurance mechanism.

Local voting rights: six districts of Maryland; two cities of Massachusetts (Amherst and Cambridge); in New York, Chicago and Arlington (VA) for school board elections; in New-Zealand for all elections.


Solution 3: Local Citizenship

Another conception of the vulnerable migrant is possible: at the local level, one status for all residents, which gives

access to all services. Vulnerability is not a fatality, but a social choice

Some American States try to limit the local citizenship movement: Arizona, Alabama...

As for other marginalised groups in history, the discourse of “Us and Them” must become a discourse of “I and We”



No man is an island,

entire of itself;

every man is a piece of the continent,

a part of the main.

If a clod be washed away by the sea,

Europe is the less,

as well as if a promontory were,

as well as if a manor of they friends's or of thine own were.

Any man's death diminishes me,

because I am involved in mankind.

And therefore never send to know for whom the bell tolls;

it tolls for thee.

John Donne (1572-1631)

immigration & refugee law françois crépeau united nations special rapporteur on the human...

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