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

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


1
Human Rights of Migrants Alexandra
GattoMaster di I livello inPolitiche di pace
e cooperazione allo sviluppo nellarea del
mediterraneo
2
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

3
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

4
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
5
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

6
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

7
Human Rights Instruments
  • UDHR
  • ICCPR
  • ICESCR
  • CRC
  • ICERD
  • CEDAW
  • CAT
  • ICMW

8
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)

9
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

10
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

11
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

12
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.

13
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

14
Convention Against Torture
  • Prohibition on returning person to State where he
    or she might be tortured

15
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

16
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

17
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

18
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

19
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

20
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.

21
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
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