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

FlowFirst 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 BordersState 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 TerritoryState 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 LawRegional Law National Law

3 Relevant International Regimes

International Human Rights Law

International Labour Law

Transnational Law on Organised Crime

Question and Answer Session for Part 1

Second Part

International Human Rights Law

Everyone has human rights

ALL

Citizens Non-nationals

Migrants (regular & irregular)

ALL• Principle of Non-

Discrimination• Principle of Equality

ALLPrinciple 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.

ALLPrinciple 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”

NOFor 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

Citizens

• Political participation rights

• Full ESC rights

Non-nationals

• No political participation rights

• ESC rights may be limited (CESCR art. 2(3)

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

Regular Migrants- Residence and employment rights- Freedom of movement- Procedural rights

Irregular Migrants

- Limited residence and employment rights- No procedural rights prior to expulsion except for equality

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

Regular Migrants- Authorised to enter, to stay and to engage in a remunerated activity in the State of employment

Irregular Migrants

- Not authorised to enter, to stay or to engage in a remunerated activity in the State of transit or destination

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