Human Rights of Migrants Alexandra Gatto Master di I livello in Politiche di pace e cooperazione all

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Human Rights of Migrants Alexandra
GattoMaster di I livello inPolitiche di pace
e cooperazione allo sviluppo nellarea del
mediterraneo
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Instruments of International Migration Law

• Criminal Law
• Convention Against Translational Crime
• Palermo Protocols

• Migrant Workers Law
• ILO Instruments
• ICMW

• Human Rights
• UDHR
• ICCPR
• ICESCR
• CRC
• ICERD
• CEDAW
• CAT
• ICMW

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States and Migrants

• States sovereignty vs. Human Rights of Migrants
• State has the power to determine
• Nationality
• Admission
• Residence
• Detention
• Expulsion of non-nationals
• Security
• Fundamental principle
• Power to manage migration must be exercised in
  full respect of fundamental HR
• Power to manage migration must be exercised in
  full respect of international commitments

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STATE OBLIGATIONS TO NON NATIONALS

• HR are inalienable - not absolute
• Derogation in times of emergency (Art 4. ICCPR)
• HR instruments distinction between national and
  non nationals, regular irregular migrants

Citizens
Regular migrants
Irregular migrants
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Rights that cannot be derogated

• 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
• Principle of non-refoulement
• Right to freedom of thought and religion

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Human Rights

• Human rights are
• Inalienable i.e. can not be taken away from a
  person
• Applied without discrimination no distinction
  based on race, colour, sex, language, religion,
  political opinion, national or social origin,
  property, birth or other status
• Not absolute some rights are derogable in
  certain circumstances, but fundamental rights are
  non-derogable (e.g. Freedom from torture)
• Applicable to migrants

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Human Rights Instruments

• UDHR
• ICCPR
• ICESCR
• CRC
• ICERD
• CEDAW
• CAT
• ICMW

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Movement-related Human Rights

• Freedom of Movement (art.13, UDHR)
• Right to seek asylum (art. 14, UDHR)
• Right to nationality (art.15, UDHR)
• Family is entitled to protection by society and
  the State (art.16, UDHR)

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Universal Declaration on Human Rights (UDHR)

• Intended as a common standard of achievement for
  all peoples and nations
• All persons are born free and equal in dignity
  and rights
• Equality and non-discrimination

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International Covenant on Civil and Political
Rights

• Takes the fundamental civil and political human
  rights and puts them into a binding instrument
• Requires State to ensure rights to all
  individuals within its territory and subject to
  its jurisdiction
• Derogation permitted in times of public emergency
  includes distinction between nationals and
  non-nationals
• Broad non-discrimination clause, so derogation
  not permitted based on race, colour, language,
  sex, or social origin
• Contains provisions on freedom of movement within
  territory
• Sets basic standards for expulsion and detention

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International Covenant on Economic Social and
Cultural Rights

• Limits the rights of non-nationals by allowing
  developing countries to determine to what extent
  they provide economic rights to migrants
• The right of everyone to the enjoyment of just
  and favourable conditions of work
• The right of everyone to form trade unions and
  join the trade union
• The widest possible protection and assistance
  should be accorded to the family
• The right of everyone to the enjoyment of the
  highest attainable standard of physical and
  mental health
• The right of everyone to education

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International Convention on the Elimination of
All Forms of Racial Discrimination

• Condemns any distinction, exclusion,
  restriction or preference based on race, colour,
  descent or national or ethnic origin.
• Allows States to distinguish between nationals
  and non-nationals as long as not unfair
  discrimination
• Differential treatment may be allowed between
  nationals and non-nationals, but discrimination
  is not.
• Discrimination connotes distinctions which are
  unfair, unjustifiable or arbitrary.

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Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW)

• Obliges States to suppress all forms of
  trafficking in women
• States should commit to upholding rights of all
  women, including women migrants

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Convention Against Torture

• Prohibition on returning person to State where he
  or she might be tortured

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Convention on the Rights of the Child

• Sets standards of treatment for all children
  under age 18
• Virtually every aspect of a childs life is
  covered including rights to health, education,
  family, adequate standard of living, etc.
• Whatever benefits a State gives to the children
  who are its citizens it must give to all children
• Obliges States to act in the best interests of
  the child

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International Convention on the Protection of
the Rights of All Migrant Workers and Members of
Their Families (ICMW)

• Adopted in 18 December 1990
• Entered into force 1 July 2003
• Comprehensive instrument applicable to the whole
  migration process from departure to return and
  regulating the legal status of migrant workers
  and their families
• Protects the basic human rights of all migrant
  workers and their families (lawfully resident and
  irregular / illegal migrants)
• Grants regular migrants a number of rights on
  the basis of equality with nationals

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Migrant Workers Law

• ILO Instruments
• Convention concerning Forced or Compulsory Labour
  (No. 29)
• Abolition of Forced Labour Convention (No. 105)
• Convention concerning Occupational Safety and
  Health Convention and the Working Environment
  (No. 155)
• ILO Convention No. 97 of 1949 (45 States parties)
• Only applicable to lawfully resident migrant
  workers
• Recruitment and orderly migration of foreign
  workers
• Equal treatment with nationals in respect of
  wages and working conditions, trade union rights,
  social security, accommodation, access to courts
• ILO Convention No. 143 of 1975 (19 States
  parties)
• Protects basic human rights of irregular migrants
  and rights arising out of past employment (unpaid
  wages, social security)
• Principle of equal treatment of legal migrants
  with nationals
• International Convention on the Protection of
  the Rights of All Migrant Workers and Members of
  Their Families

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International Criminal Law Instruments

• United Nations 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

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Convention Against Transnational Organized
Crime(2000)

• Nature of the Instrument
• Convention contains general measure against
  transnational organized crime
• Protocols deal with specific crime problems
  concerning trafficking and smuggling
• Protocols supplement the Convention
• A State must be a party to the Convention to
  become party to Protocols

• What the Instrument does
• Symbolizes recognition of the problem and
  commitment to take effective measures
• Standardizes terminology, laws and practices
• Combines criminal offences, crime control, crime
  prevention and other measures
• Extends scope of extradition, legal assistance
  and other mechanisms

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Smuggling Protocol

• Smuggling Protocol
• Requires States to
• Criminalize smuggling
• Cooperate to prevent smuggling
• Strengthen border controls to detect smuggling
  (art.11)
• Address root causes
• Take appropriate measures to preserve and
  protect rights
• Cooperate in return

• Definition
• Smuggling of migrants shall mean the
  procurement, in order to obtain, directly or
  indirectly, a financial or other material
  benefit, of the illegal entry of a person into a
  State Party of which the person is not a national
  or a permanent resident
• Illegal entry shall mean crossing borders
  without complying with the necessary requirements
  for legal entry into the receiving State.

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Trafficking Protocol

• Trafficking in persons means
• the recruitment, transportation, transfer,
  harbouring or receipt of persons,
• by means of the threat or use of force or other
  forms of coercion, of abduction, of fraud, of
  deception, of the abuse of power or of a position
  of vulnerability or of the giving or receiving of
  payments or benefits to achieve the consent of a
  person having control over another person,
• for the purpose of exploitation.

• Trafficking Protocol
• Requires States to
• Criminalize trafficking in persons
• Assist and protect victims (art.6)
• Repatriate victims (art.8)
• Control measures borders, travel documents, etc.
  (art.11)
• Train border guards, research, information
  measures