Migration Legislation, State Sovereignty and Human Rights

1. Migration Legislation, State Sovereignty and Human Rights Jillyanne Redpath Senior Legal Officer IOM

2. PRINCIPLE OF NATIONAL SOVEREIGNTY • International law affirms state authority to regulate movement of persons across its borders and defend its security • States have wide discretion in: • Crafting admission • Controlling borders • Expulsion • Protecting state security • Granting nationality

3. RIGHT TO ADMIT • A migrant has the right to leave own country— • No international obligation on a State to permit entry to a non-national • Categories of persons able to assert right of return limited to citizens

4. State has a right to remove a migrant from the territory Tempered by Principle of non-refoulement “best interests of the child” Procedural limitations under international law Eg: Art. 13 ICCPR, Art 22 MWC Prohibition on mass expulsion RIGHT TO REMOVE

5. National Security • Central feature of state sovereignty = power of state to defend its security • Migration procedures are becoming tools for combating terrorism • Distinctions between nationals and non- nationals must be • Proportionate • Necessary • Non-discriminatory

6. Nationality • Little international law • Obligation to reduce statelessness • Determinations must be consistent with international law • Jus soli and jus sanguinis, marriage, adoption, residence • Dual nationality

7. HUMAN RIGHTS INSTRUMENTS • Universal Declaration on Human Rights • International Covenant on Civil and Political Rights • International Covenant on Economic, Social and Cultural Rights • International Convention on the Elimination of Racial Discrimination • Convention on the Elimination of All Forms of Discrimination Against Women • Convention Against Torture • Convention on the Rights of the Child • Migrant Workers Convention

8. Human Rights of Migrants • All migrants are human beings possessing human rights • Art 2, UDHR principle of non-discrimination. • Other rights of particular relevance • Freedom of movement • Right to leave any country and right to return to own country • Right to seek asylum • Right to nationality

9. Convention on the Protection of all the Rights of Migrant Workers and Members of Their Families • Adopted by UN General Assembly – 18 December 1990 • Entry into force – 1 July 2003 • 35 States parties to date • Algeria, Azerbaijan, Belize, Bolivia, Bosnia, Burkina Faso, Cape Verde, Chile, Colombia, Ecuador, Egypt, El Salvador, Ghana, Guatemala, Guinea, Honduras, Kyrgyzstan, Lesotho, Libya, Mali, Mexico, Morocco, Nicaragua, Peru, Philippines, Senegal, Seychelles, Sri Lanka, Syria, Tajikistan, Timor-Leste, Turkey, Uganda, Uruguay

10. Migrant-specific and “new” rights • Prohibition on confiscation and destruction of identity and travel documents (e.g. passports) – Art 21 • Recourse to protection and assistance of consular/ diplomatic authorities of State of origin – Art 23 • Transfer of earnings and savings (remittances) – Art 32 • Free provision of information on Convention rights and conditions of admission and, as far as possible, in a language migrants can understand – Art 33

11. Inter-state cooperation (Part VI) • Obligations upon States to • consult and cooperate to promote sound, equitable and humane migration conditions - Art 64(1) • collaborate to prevent/ eliminate irregular migration - Art 68 • impose sanctions on traffickers, smugglers and those who exploit migrant workers (e.g. employers) - Art 68(1)-(2) see also • CEDAW – Art. 6 • Trafficking and Smuggling Protocols to the International Convention against Transnational Organised Crime 2000

12. “State sovereignty” clause(Part VIII, Art 79) “Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families. Concerning other matters related to their legal situation and treatment as migrant workers and members of their families, States Parties shall be subject to the limitations set forth in the present Convention.”