Legal Protection of (vulnerable) non-nationals

Legal Protection of (vulnerable) non-nationals UNITAR-IOM UNHQ 9-11 June 2010 Kristina Touzenis.

Who is vulnerable? • Women and Children (- why women and children? - why NOT women and children?) Shakespeare had a point:The first thing we do, let's kill all the lawyers'

Refugees (Refugee Convention 1951) • Victims of Trafficking (Palermo Protocol 2000 and general Human Rights Law) • Torture victims (CAT 1984 and general Human Rights Law) • Convention on the Rights of the Child (CRC 1989 – following presentation) • Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW 1979)

International Standards • Human rights are inalienable – but not all are absolute • Derogation possible in times of emergency (Art 4. ICCPR) • Human rights instruments make some distinctions between national and non-nationals, regular and irregular migrants Citizens Regular migrants Irregular migrants

International human rights law • International Bill of Human Rights • Universal Declaration of Human Rights 1948 • Covenant on Civil and Political Rights 1966 • Covenant on Economic, Social and Cultural Rights 1966 • Other core human rights instruments (thematic or protecting specific groups) • Convention on the Elimination of All Forms of Racial Discrimination 1965 • Convention on the Elimination of All Forms of Discrimination Against Women 1979 • Convention against Torture 1984 • Convention on the Rights of the Child 1989 • Migrant Workers Convention 1990 • NON Human Rights instruments with Human Rights Components • Refugee Convention 1951 • Trafficking and Smuggling Protocols 2003

The International Bill of Human Rights cover the human rights in the other conventions • The specific conventions are not something new and revolutionary compared to the Bill • Then why have them? • He was a clever guy – Shakespeare....

Specific protection • Basic Human Rights are valid for all persons • Some people are more in need of protection against violations than others – thus more attention • Not different rights but different focus

In most national legislation there will be measures which aim at protecting the vulnerable in accordance with international obligations • Non-nationals do not always benefit from the treatment available to nationals • Important to consider vulnerability before nationality (with respect for the State’s sovereignty)

Women Migrants • Woman migrants are often more at risk of falling victims exploitation – forced labour, sexual exploitation and other forms of violence. They more often accept dangerous working conditions and lower wages, under the lawful minimums • Many women do not have necessary information • Empowerment

Rights of women • General Human Rights Instruments are valid – such as the ICCPR and ICESCR • The CEDAW is particularly relevant

CEDAW • Article 5: States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women

Art 10: States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women • Participation (art. 7) – the private and public sphere have been considered seperate and have been regulated in accordance with this notion. Women are placed in the private domestic sphere associated with reproduction and education of children and in most societies these activites are considered “inferior”

Non-discrimination • Article 2 (e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise • This principle is also found in the Convention on the Protection of the Rights of All Migrant Workers and members of their Family • The independent legal status of women is very important – independently of the reason for their stay and residence • Recognition of qualification and education • Even if women on the labour market is now very high there is an improportionate number of women in low-paid and insecure jobs

Article 14 : States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas. • Article. 6: States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.

The Beijing platform for action (1995) (paragraph 46) recognises that the realisation of full equality and empowerment of women are hold back by various factors. Many women are held back by obstacles linked to their family sitation and thir socio-economic situation. Refugees and internally displaced women, as well as migrant women (including migrant workers) encounter additional obstacles • Domestic workers are in a particulalry dangerous situation and very often the abuse they suffer is not denounced. This situation is an additional barrier to equality and respect for the rights of women

Migrant Workers Convention • Even if article 16 of the Convention states that “Migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions” the convention does not considere the particular vulnerability of women (or their strenghts)

Conclusion • Women’s rights are, as migrants’ rights, Human Rights • There is a need of advocating for women’s rights so that they are empowered to take informed decisions • Need to considere capacities and vulnerabilities • Recognise that women migrate more and more independently • Consider protection of women in all stages of migration

And now to children...

Legal Protection of (vulnerable) non-nationals