Rights of Migrants under International Law International Migration

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 International Human Rights Law International Labour Law Transnational Law on Organised Crime

Question and Answer Session for Part 1

Second Part

Internationa l Human Rights Law

Everyone has human rights ALL Citizens Non-nationals Migrants (regular & irregular)

ALL • Principle of Non. Discrimination • Principle of Equality

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 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