Human Rights of Migrants in the 21st Century

Elspeth Guild, Stefanie Grant, C. A. Groenendijk

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9781138503397
• eBook ISBN: 9781351382793
• Topic: Droit
• Subtopic: Histoire de l'armée et de la marine

This book offers an accessible examination of the human rights of migrants in the context of the UN's negotiations in 2018.

This volume has two main contributions. Firstly, it is designed to inform the negotiations on the UN's Global Compact for Safe, Orderly and Regular Migration announced by the New York Declaration of the UN General Assembly on 19 September 2016. Second, it intends to assist officials, lawyers and academics to ensure that the human rights of migrants are fully respected by state authorities and international organisations and safeguarded by national and supranational courts across the globe. The overall objective of this book is to clarify problem areas which migrants encounter as non-citizens of the state where they are and how international human rights obligations of those states provide solutions. It defines the existing international human rights of migrants and provides the source of States' obligations. In order to provide a clear and useful guide to the existing human rights of migrants, the volume examines these rights from the perspective of the migrant: what situations do people encounter as their status changes from citizen (in their own country) to migrant (in a foreign state), and how do human rights provide legal entitlements regarding their treatment by a foreign state?

This book will be of much interest to students of migration, human rights, international law and international relations.

1
Introduction

Elspeth Guild, Stefanie Grant and C. A. Groenendijk

We reaffirm the purposes and principles of the Charter of the United Nations. We reaffirm also the Universal Declaration of Human Rights and recall the core international human rights treaties. We reaffirm and will fully protect the human rights of all refugees and migrants, regardless of status; all are rights holders.

New York Declaration of the UN General Assembly 19 September 2016¹

For the first time in its history, the UN adopted a Declaration for Migrants and Refugees² on 19 September 2016 which calls for two Global Compacts:³ one for safe, orderly and regular migration and the other for refugees. The context of the New York Declaration is the ongoing large movements of migrants and refugees, and the objective to achieve international agreement on commitments to both safe, orderly and regular migration and refugees. It contains three types of commitments – those relevant to migrants and refugees, those specific to migrants and those relevant only to refugees. The commitments to both migrants and refugees are to “people-centred, sensitive, humane, dignified, gender-responsive and prompt reception for all persons arriving in our countries”.⁴ The international community’s commitment to migrants is “protecting the safety, dignity and human rights and fundamental freedoms of all migrants, regardless of their migratory status, at all times”⁵ and to refugees to address the issues which force people to flee – to “work to address the root causes of such crisis situations and to prevent or resolve conflict by peaceful means.”⁶ Migration, both voluntary and forced (that is of refugees) is a matter of substantial tension in the international community. Put simply, one country’s migrant is another country’s citizen. Thus the interests of States are not always in alignment regarding how someone who is simultaneously a migrant in the state where he or she is currently and a citizen of his or her home country with an entitlement to consular protection by that state. Refugee flight can be even more sensitive for the international community where providing refuge to someone can be seen as a criticism of his or her state of origin. This is particularly the case where the individual seeks asylum on the ground that his or her country of origin is persecuting him or her.

Addressing these tensions is at the heart of the New York Declaration and a courageous step towards resolving them. The New York Declaration provides a particularly strong starting point for the two Compacts – it requires the Compacts to start from the existing international human rights commitments of States arising from the Universal Declaration and the human rights conventions to which States have committed themselves. For refugees, this direction is straightforward as the international community can start from the Refugee Convention which sets out a clear floor of rights for refugees and has a strong international organisation, UNHCR, which is responsible for ensuring protection of refugees. Migrants are not so fortunate. There is one UN convention relating specifically to them, but it is a fairly young convention and still needs to be ratified by many States (which the Declaration calls for). There is no one international organisation which is clearly and unambiguously responsible for migrants in particular as regards the protection of their human rights.⁷ Instead, migrants’ entitlement to human rights comes from the application of UN human rights conventions to ‘everyone’ – citizens, aliens, everyone. It is the objective of this book to bring together these human rights from the perspective of the migrants who need to rely on them.

The New York Declaration is particularly clear that the international community wishes that the starting place of the Compacts be the existing human rights of refugees and migrants. To facilitate that objective, it is necessary then to set out what those rights are. In order to do so, we primarily use two sources of international law: first the UN conventions themselves and secondly the General Comments of the Treaty Bodies established to ensure correct State compliance with the obligations. Occasionally, we also make reference to established legal opinion and Opinions of Treaty Bodies in particular cases. There is a wealth of regional standard setting both in the area of refugees and migrants. As the purpose of this book is to clarify the existing human rights of migrants at the international level, we have not used this regional material, which commits only States in the relevant geographical area. While regional standards are very important to the development of consensus on human rights at the UN level, for our purposes, we only include clearly demonstrated legal consensus on the human rights of migrants at the international level through the UN bodies. Further, many UN bodies have produced excellent and detailed work on the human rights of migrants. However, there is a need for an overview which is legally sound, reliable and available to everyone, not just the specialist reader. This is what we aim to do here.

To achieve our objective, we have structured this book around the problems and issues which migrants encounter with State authorities and address the problems from the perspective of existing and binding international human rights law. This is somewhat different from the normal legal textbook approach which starts with the law and then applies it. Instead, we start from the problem and then elucidate it from the perspective of human rights law. To make each issue clear and accessible, at the start of each chapter a specific problem encountered by a migrant which has been addressed in an Opinion of a Treaty Body on the compatibility of the State authorities’ action with its human rights obligations is included.⁸ We have included reference to the opinion in each case, which reveals the State in respect of the which the matter arose. But this is not intended as an exercise in highlighting shortcomings in specific countries. It is the by-product of our commitment to accuracy and accountability. In these times of allegations of fake news, we take very seriously our obligation of complete transparency.

Migrants have human rights:⁹ this is a legal fact in international, regional and national law around the world.¹⁰ As human beings, migrants are entitled to the protection and guarantee of human rights by all States within whose jurisdiction they may find themselves. Human rights are not exclusively for citizens; they are for everyone. Respect for the human rights of migrants is not aspirational or optional, but obligatory for State authorities. National law must conform to those international obligations to which States have committed themselves. These commitments have been drafted, negotiated and adopted by States themselves; they are not ‘imposed’ on them by some outside entity. Of particular importance for migrants are States’ international human rights commitments, which constitute a floor of rights below which national law and the actions of State authorities must not fall. State officials must act in conformity with national, regional and international law, including human rights law, in all their activities regarding migrants, be they at the borders, within the State or simply under their jurisdiction.

All State authorities must apply their State’s international human rights commitments in their daily work. As the Human Rights Committee has clarified in General Comment 31 regarding the Civil and Political Rights Covenant but equally relevant to all States’ human rights commitments:

• 4 All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State Party. The executive branch that usually represents the State Party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility.¹¹

This reality might have been controversial 40 years ago, but today, UN institutions and their regional counterparts are increasingly engaged in the protection of human rights of people by States of which they are not citizens (often classified as foreigners, aliens, migrants, immigrants, etc., but consistent with the approach of OHCHR, we use the term migrant). As a matter of fact, the Human Rights Committee’s experience in examining State reports shows that rights that migrants should enjoy under the Civil and Political Rights Covenant are denied to them or are subject to limitations that cannot always be justified under it.¹² The description of a person as a migrant is not a justification for State action which is incompatible with UN and regional human rights obligations. International human rights law is the creation of States, to which States have voluntarily bound themselves through their ratification of the conventions. All States have a strong interest in ensuring that they comply with their international human rights obligations. Migration is no exception, but it is a field where tensions arise.

As the Human Rights Committee has clarified in General Comment 31:

• 2 While article 2¹³ is couched in terms of the obligations of State Parties towards individuals as the right-holders under the Covenant, every State Party has a legal interest in the performance by every other State Party of its obligations. This follows from the fact that the ‘rules concerning the basic rights of the human person’ are erga omnes obligations and that, as indicated in the fourth preambular paragraph of the Covenant, there is a United Nations Charter obligation to promote universal respect for, and observance of, human rights and fundamental freedoms. Furthermore, the contractual dimension of the treaty involves any State Party to a treaty being obligated to every other State Party to comply with its undertakings under the treaty.

It is not only a duty of States to comply with their human rights obligations; it is in their interest and that of every State party to human rights conventions. These duties are a central part of the international relations system established under the UN.

The objective of this book is to clarify problem areas which migrants encounter as non-citizens of the State where they are and how international human rights of those States provide solutions. It defines the existing international human rights of migrants and provides the source of States’ obligations. In order to provide a clear and useful guide to the existing human rights of migrants, we have chosen to examine these rights from the perspective of the migrant: what situations do people encounter as their status changes from citizen (in their own country) to migrant (in a foreign State), and how do human rights provide legal entitlements regarding their treatment by a foreign State?

Purpose and scope

This book is designed first to inform the negotiations on the UN’s Global Compact for Safe, Orderly and Regular Migration (the Global Compact on Migration) announced by the New York Declaration of the UN General Assembly on 19 September 2016.¹⁴ Many of the rights which we address here are equally relevant for refugees and people seeking international protection. Often conflicts about the human rights of migrants arise in respect to people who are seeking or have sought international protection. However, as noted earlier, the international framework of refugee rights is much better defined than that of migrants who are not refugees. It is therefore particularly important that the New York Declaration reaffirms States’ commitment to the Universal Declaration of Human Rights (the Universal Declaration) and the core UN human rights treaties. Indeed, human rights are referred to more than 30 times in the New York Declaration and in the section specific to the Global Compact on Migration 11 times.¹⁵ The Compact must implement the objectives of the General Assembly set out in the New York Declaration. Thus the Compact on Safe, Orderly and Regular Migration will need to build on the existing international human rights of migrants.

Secondly, this book is intended to assist officials, lawyers and academics to ensure that the human rights of migrants are fully respected by State authorities and international organisations and safeguarded by national and supranational courts across the globe. Everyone has an interest in ensuring that State commitments are fully and properly respected. States voluntarily enter into international agreements which create obligations for them. They do so in accordance with their constitutional arrangements which engage their State. Having done so, States are committed to ensuring that their national law and its application by their officials, agencies and the private sector fully complies with these obligations arising from international law. Their courts, other dispute resolution mechanisms and complaints bodies must be able to take their State’s international obligations into account when examining the application of national laws to ensure compliance.

Human rights are not simply for citizens, they are for everyone. Migrants are just as entitled to respect and State compliance with (almost) all human rights as citizens of a State. This is the principle of equal treatment and non-discrimination, which is a human right in itself contained in all the nine core human rights conventions. There are two types of exceptions in international human rights law. The first type of exception is in respect of rights which on their face exclude migrants and which are mainly limited to the fields of democratic process (such as voting rights). We will not dwell on these exceptions, as they are explicit in human rights conventions and very few in number. The second type of exception is very different – these exceptions permit States to limit certain human rights (but not all) where this is justified on the grounds enumerated in the convention. While some human rights can be subject to limitations, such as the right to family life, others are absolute, such as the prohibition on torture or return to a country where there is a substantial risk that the person would suffer torture. It is always for the State to justify its use of an exception setting out the grounds on which it is relying and the circumstances which justify it. Where a State is entitled to limit a human right on a ground of an exception, it must start from the position that everyone is entitled to the right equally. The scope of the exception must not discriminate on the basis that the person claiming the right is a citizen or a migrant unless the State can justify the difference in treatment and show that it is proportionate to the objective sought.

Sometimes, States confuse the two types of exception. They may claim the right to treat migrants diff...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of abbreviations
• List of contributors
• 1 Introduction
• 2 The right to be recognised as a person before the law
• 3 Migrants’ rights at the border
• 4 Immigration detention
• 5 Irregular status
• 6 Rights of residence, termination of residence and in respect of removal
• 7 The economic, social and cultural rights of migrants
• 8 Rights at work
• 9 Family life and the migrant
• 10 Freedom of thought, belief and religion and freedom of expression and opinion
• 11 The right to an effective remedy, the right to an effective national procedure against arbitrary removal and the right to a fair hearing
• 12 Conclusion and summary of key international human rights of migrants
• Bibliography
• Index