Rights of Migrants under International Law

1. Rights of Migrants under International Law International Migration e-learning course in preparation of IDEA Youth Forum 2011 15 June 2011

2. 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

3. 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

4. First Part

5. Migration & State Sovereignty • Question of legal jurisdiction: who is responsible for a migrant’s rights? • Territorial (origin, transit, receiving) • Nationality • Legal long-term residence

6. 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)

7. 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

8. Source of State Responsibility State Obligations under International Law Regional Law National Law

9. 3 Relevant International Regimes

10. Question and Answer Session for Part 1

11. Second Part

13. Everyone has human rights

15. 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.

16. 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

17. 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.

18. 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

19. Differentiation between National & Non-Nationals

20. 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

21. Migrants

22. Convention on the Rights of Migrant Workers and Members of their Families (CMW) Non - universal ratification!

23. “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.

24. “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

25. 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

26. 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

27. What the CMW does NOT cover:

28. Migrants

29. CMW application to Irregular Migrants (1) Part III Human rights of ALL migrant workers and their family members • All fundamental rights APPLY!

30. 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

31. CMW application to Irregular Migrants (3) • Access to basic economic & social rights • Safeguards in detention and expulsion • Possibilities of regularisation and residence rights