Migration is a broad concept, which is defined in a general sense by the International Organization of Migration (IOM) as including all movement of persons, leaving or fleeing their usual residence whatever may be their reason, their destination and the duration of their trip. Even if according to IOM terminology, migration may also take place inside the territory of a country, the cases of international migration are the most complex.
Migration is an old, multifactorial, and growing phenomenon. Migration for reason of persecution has been formally addressed in international convention after the second world war while migration for employment was regulated early on as part of international labour law and economic practices. Both aspects resurface and conflate today.
According to the 2021 third edition of the International Labour Organisation (ILO) Global estimates on international migrant workers, international migrant workers constitute nearly 5 per cent of the global labour force and are an integral part of the world economy. It also highlights that, in 2019-2020, Migrant workers constituted around 169 million of the estimated 272 million total global migrant population showing that no State can address international migration alone due to its global nature.
Multilateral treaties or instrument devoted exclusively to migration are limited in number and cover specific situations of migration that have crystalised international concerns over the years: rights of migrant workers and their family (1949-1990), Refugee (1951 and 1967), human trafficking and the smuggling of migrant (2000). The United Nations attempt to propose a more holistic approach to this phenomenon led to special attention given the rights of irregular migrant workers and their family with the 1990 Convention on the right of all migrant workers and their family. However, this convention is poorly ratified with a small number of 58 States parties representing only countries of origin of migration and no major country of destination. Building on the failure of a rights-based approach, the United Nations General Assembly (UNGA) adopted in 2016 the New York Declaration for Refugees and Migrants which led to the intergovernmental collaborative process enshrined in the non-binding Global Compact for Safe, orderly and regular migration (2018).
Migrants as such do not enjoy an international right to migration and there are important legal implications related to the various terminology at play (I). The main legal framework related to migration consist of international agreements organising the free movement and treatment of migrant workers at international level (II) or within a regional economic area (III). Beyond the limited protection of the international migration framework, migrants can benefit, as all other human beings, from certain fundamental human rights relevant to their fate defined at universal and regional level, such as freedom of movement and the right to flee, the principle of non-refoulement and expulsion, detention and human treatment as well as respect of family link. (IV). Migration remains a cross cutting issue sitting at the junction of different United Nations bodies (V).
They can also call upon protection provided by international convention to specific categories of people such as refugees, shipwrecked persons, children, victims of armed conflict and other form of persecution and violence. However, the ability to claim these special statuses of protection requires referring to different terminology and being careful with the generic terminology of migrant. These special statuses are covered in relevant separate sections.
Within its broad sense, notably used by the International Office for Migration (IOM), the term “migrant” includes all persons that have moved from their usual place of residence (whatever the reason being) and including those who are internally displaced within their own country. One should question the logic of using such a broad term as it tends to blur the different needs, vulnerabilities and rights entrusted by international law to individuals in specific situation of international or internal displacement. This use by the IOM also contributes to the construction of non-specific data on organised and disorganised movement of population.
Indeed, while the international refugee convention prohibits States from punishing the illegal entry into their territory of asylum seekers fleeing individual persecution, illegal entry into a country remains an offence as such for all migrants who do not qualify as refugees or asylum seekers.
On the contrary, if there is a right to migrate between States, there is no right to migration for the migrant himself, except in the particular case where he is fleeing persecution and can avail himself of protections conferred by international refugee law.
Migration sits at the crossroad between State centred economic interest and the life constraints of individuals. It is not seen as a human right but as an integral component of the global economy and the global agenda for sustainable development.
Therefore, the capacity of migrants to settle effectively in another country depends on the sovereign policy of each State regarding the numbers and profile of migrant workers allowed into the country, notably in relation to the labour force needed or other priority concerns of the State.
The gap between the increasing migratory pressure of individuals and the restrictive employment practice of States calls into question the existing international framework for protection of persons in danger. It fuels dangerous migration processes that include human trafficking and migrant smuggling. It increases the vulnerability of migrant and creates significant humanitarian needs for assistance and gaps of legal protection.
International human rights conventions do, however, offer a minimum level of protection that can be invoked by individuals who are in an irregular migratory situation on the territory of a State of which they are not nationals. The most important one is the prohibition of refoulement to a country where the life or security of the individual is threatened. It is completed by the prohibition of collective expulsion, and fundamental guarantees concerning detention, humane treatment and respect for family unity. States are obliged to respect these rules with regard to all persons, including those who are in an irregular migratory situation on their territory and under their control.
The term migrant is therefore largely inappropriate for dealing with the need of a specific legal protection for people fleeing in droves from situations of armed conflict, generalized violence, or disaster. The choice to use this term relieves States and relief organizations of the procedures and delays associated with a more appropriate legal qualification of the persons concerned. It is also linked to the fact that the origins of migration are historically varied, often involving a mix of push and pull factors like armed conflict, natural and man-made disaster, poverty, unemployment, demographic pressure or discrimination.
The indiscriminate practices of “pushbacks” or “pullbacks” consisting of States using force to prevent people from entering their national territory illegally or to send them back to the other side of the border before they can claim their right to asylum, illustrate the dangers created by a security approach management of migration to the detriment of the respect of fundamental guarantees of individuals and populations fleeing danger. These illegal State practices also find an echo in the use of populations in distress for the purpose of destabilizing borders and territory of other States, but also of criminalization in the name of the fight against human trafficking, of humanitarian aid to migrants.
I. TERMINOLOGY AND LEGAL STATUS OF MIGRANTS
Regular or irregular migration
While organised migration is planned by States with a procedure, duration and quotas that includes provisions for family reunification, unplanned migration occurs when people find themselves under urgent need to leave their country of origin without previous authorisation from the potential countries of destination.
Those who finds themselves on the move across borders without having succeeded through an official application for migration are often referred to as “illegal” or “irregular” migrant. Their lack of an effective legal status within national law makes them extremely vulnerable.
The designation of irregular migrant (also sometimes referred to as “illegal, clandestine, undocumented and paperless person”) describes individuals who are not, or are no longer, authorized to stay, enter, or reside in the territory of a country of which they are not nationals (transit or destination country). This term covers both migrants who have entered without the necessary authorization and those whose residence permit or visa has expired. The term “irregular” is used in most statutory texts and resolutions as this term is relatively neutral and comes closest to the reality it describes without having the pejorative implications of other terms used such as illegal, clandestine or undocumented migrant.
Although not legally residing in a country, irregular migrant remains protected by IHRL that apply to all person within State territorial jurisdiction; and the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime.
Refugee and Asylum seekers
Refugees and Asylum seekers should not be legally assimilated to irregular migrant. The UN convention on the protection of refugee, provides that asylum seeker cannot be punished for illegal entry in a territory of a foreign country. A refugee status varies according to the applicable law (national or international). It is generally a person fleeing its country out of well-grounded fear of persecution. This includes various form of risk on a person’s life and safety demonstrating the loss of domestic protection and the absolute constraint to flee one’s country in search of international protection and asylum in another country. As of mid-2022, 31.5 million people were considered refugees by the UNHCR. Refugees and asylum seekers are considered a special category of migrant in international law because they are fleeing persecution.
Population victims of armed conflict and forced or voluntary displacement
International rules regarding voluntary and forced movement of populations differs in times of peace and in situation of armed conflict where International Humanitarian law (IHL) complement human rights law. Population forcibly displaced or voluntarily fleeing a situation of armed conflict should not be labelled as migrant as they are entitled to international protection under IHL and they cannot be sent back to a country affected by armed conflict. In practice, migration is most of the time, a combination of choices and constraints rather than a clear-cut voluntary or unvoluntary (or even forced) decision of migration. It is best described as a continuum going from entirely voluntary to entirely forced, with an important grey zone in the middle. Furthermore, individual persecution may happen after departure from the country of origin along the migration route. Voluntary migration often describe situation where a person chooses to leave and have time to plan and prepare before it does so. Forced migration defines situation of displacement of population across an international border carried out on an emergency basis and caused by armed conflict or other situations of violence, an environmental disaster, persecution, human trafficking or otherwise.
II. INTERNATIONAL TREATIES AND RULES ON INTERNATIONAL MOVEMENT OF POPULATION AND ON THE TREATMENT OF MIGRANT
International treaties related to migrants have been developed under the auspices of the ILO for migrant workers. They have been later complemented by the international Convention on refugees under the auspices of the UNHCR. A special international Convention focusing on the protection of the human rights of all migrant workers and members of their family have been adopted in 1990 under the auspices of the UNGA in addition of others related to the prohibition of slavery, human trafficking and transnational organised crime involving the UN human rights council, the office of the High Commissioner for Human Rights (OHCHR), and the IOM. The Global compact for safe migration is the latest non-binding international document adopted in 2018 in order to build an international comprehensive approach to migration and refugees.
The ILO has adopted in 1949 a convention regulating migration for employment (ILO n° 97, revised), complemented in 1975 by another convention concerning migration in abusive condition of employment (ILO n°143). Both set the frame for domestic regulation and practices with regard to economic migrations. They require equal treatment and non-discrimination of regular migrant workers (compared to national workers) in term of working conditions, benefit, social insurances and access to trade union. They are complemented by other ILO conventions such as the one on Equality of Treatment Convention of 1962 (ILO n°118), and the Decent Work for Domestic Workers of 2011 (ILO n°189) as well as the one on forced labour (ILO n°29), and on the prohibition of forced labour (ILO n° 105) complemented in 2004 by an additional protocol to n°29 with the view to prevent and remedy new forms of forced labour, human trafficking and modern slavery.
The 1951 Convention relating to the Status of Refugees is the foundation of international refugee law. International refugee law is part of a larger mosaic of IHRL and IHL. It was adopted on 28 July 1951, entered into force on 22 April 1954 and currently has 146 State parties; The 1967 Protocol relating to the Status of Refugees is independent of, although integrally related to, the 1951 Convention. The Protocol lifts the time and geographic limits found in the Convention’s refugee definition. This Protocol as well as a number of regional refugee instruments grant specific rights for refugees and asylum seekers such as access to a fair procedure of determination of the refugee status, the prohibition of sanction for illegal entry on a territory and the prohibition of refoulement ( infra )
The International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families was adopted on 18 December 1990, entered into force on 1 July 2003 and has 58 States parties as of April 2023. However no major country of destination of migrant has ratified this convention. It is the first convention formally dealing in a comprehensive manner with the rights and protection of all migrants including irregular migrant. Its articles 7 to 35 regulates fundamental human rights of all migrants and their family without distinction between those who have a regular status and those who are undocumented and irregular in the country. This includes condition of detention and due process (article 17), the prohibition of collective expulsion (article 22), the access to education for children of all migrants (article 30). Articles 36 to 71 provides specific additional rights to regular migrants and their family based on the principle of equal legal treatment and non-discrimination with nationals of the country. It brings a global overview of the impact of migration on countries of origin, transit and destination. Its main goal is to guarantee migrants basic human rights and to ensure a minimum level of protection to all migrant and their family whether they find themselves in a lawful or irregular situation. It also recommends measures to eradicate clandestine immigration. The convention creates a committee in charge of monitoring its implementation (article 72). The committee is composed of independent experts elected by States parties as well as representatives of the ILO with consultative status. States parties commit to submit every five years report to the committee (articles 73-74). Through optional articles 76 or 77, States parties may also allow the Committee to receive and manage State or individuals’ communication related to alleged breach of the convention. The committee reports annually to the UNGA, and its annual report is shared by the UN Secretary General with all States parties and UN bodies involved in Migration concerns such as the Ecosoc, the UN Human rights council, the director of ILO.
Other international conventions against discrimination or slavery are also relevant to tackle the special vulnerability of migrant notably irregular ones with regard to abusive condition of travel and employment. This is the case notably with the 1926 Slavery Convention and the 1956 Convention on the Abolition of Slavery, as well as the 1949 Convention for the suppression of the traffic in persons and of exploitation of the prostitution of others. They have been updated with more recent international conventions.
The UN Convention against Transnational Organized Crime also known as the “Palermo convention” has been adopted by the UNGA in 2000 (A/55/25) and is supplemented by the two following additional protocols.
The Protocol against the smuggling of migrants by land, sea and air was adopted on 15 November 2000, entered into force on 28 January 2004. As of January 2023, it had 151 State parties. The Protocol aims to protect migrants from organized crime and human trafficking. It covers smuggling, which is when a person agrees to be brought illegally to another country by hiding at the border. It excludes the criminal responsibility of migrant engaging with smuggler (art. 5). It considers migrant as victims and commit to provide appropriate assistance and protection (art. 16) and to respect relevant provision of international refugee law, human right and IHL in managing the return of undocumented and irregular migrant (art. 18).
The Protocol to Prevent, Supress and Punish Trafficking in Persons, especially Women and Girls, was adopted on 15 November 2000. It strengthens international and national criminalisation of such practices and agree on minimum rules of assistance and protection of victims of trafficking in receiving State and in the process of returning this person (repatriation) to the State of origin (arts. 6 to 8).
Since 2007 the IOM has been given a leading role on the cross-cutting issue of migration and climate change and participation in the Global Forum on Migration and Development.
In September 2016, the UNGA adopted the New York Declaration for Refugees and Migrants which led to the development of the Global Compact for safe, orderly and regular migration. The 2018 Global Compact for safe, orderly and regular Migration was adopted in Marrakesh, Morocco on 10 December 2018 and is the first intergovernmental agreement to cover all dimensions of international migration in a harmonized and comprehensive manner as illustrated by the joint contribution of the IOM, ILO, UNOCHR and UNICEF. It has been endorsed by States on 19 December 2018 by resolution A/73/195 of the UNGA (152 vote in favour, 5 vote against and 12 abstentions). Within this process it was also decided that even if refugees and migrants face similar challenges and vulnerabilities it was necessary to distinguish the special situation of refugees from the one of migrants and to address them in two distinct global compacts: one on refugees and the other one on migration. Due respect was given to the fact that migrants and refugees are distinct groups governed by separate legal frameworks. Even if refugees and migrants are entitled to the same universal basic human rights and fundamental freedoms, which must be respected, protected and fulfilled at all times, only refugees are entitled to the specific international protection as defined by international refugee law.
The Global Compact is a non-legally binding framework for cooperation that recognizes that no single State can address migration alone due to the inherently transnational nature of the phenomenon. It notes that while a majority of migrants travel from one country to another in a safe, orderly and regular manner, too many are subject to unspeakable abuses and are in vulnerable situations. It is agreed that well-organised migration is a source of prosperity, innovation and sustainable development that benefits millions of people and countries involved every year. However, in recent years, migration has been a major source of tension between States and civil society, exposing migrants to abuse, and various form of exploitation. Massive movements of people driven by desperation have cast a shadow over the broader benefits of migration for the economic development of the countries and people concerned.
With the Global Compact for Migration, States have committed to improving the governance of migration so that it benefits all. The agreement rests on three mains pillars: the need to put human rights back at the heart of discussions and actions in the context of the importance of international migration; the importance of better taking into account the positive effects of migration on the development of countries, in line with the 2030 Sustainable Development Goals; and the need to address migration issues in line with the global reality by including all stakeholders, including migrant workers and members of their families, on the basis of a global partnership.
It identifies and agrees on 23 objectives to improve migration governance through regional and bilateral cooperation and dialogue. While clearly moving in the direction of State-controlled regular migration, some objectives address the humanitarian dimension of irregular migration (5, 7, 8, 10, 13) including the need to eliminate discrimination, racism, xenophobia as well as hostile public discourses against migrant and their families (17).
The 23 agreed objectives are as follow:
- Collect and utilize accurate and disaggregated data as a basis for evidence-based policies;
- Minimize the adverse drivers and structural factors that compel people to leave their country of origin;
- Provide accurate and timely information at all stages of migration;
- Ensure that all migrants have proof of legal identity and adequate documentation;
- Enhance availability and flexibility of pathways for regular migration;
- Facilitate fair and ethical recruitment and safeguard conditions that ensure decent work;
- Address and reduce vulnerabilities in migration;
- Save lives and establish coordinated international efforts on missing migrants;
- Strengthen the transnational response to smuggling of migrants;
- Prevent, combat and eradicate trafficking in persons in the context of international migration;
- Manage borders in an integrated, secure and coordinated manner;
- Strengthen certainty and predictability in migration procedures for appropriate screening, assessment and referral;
- Use migration detention only as a measure of last resort and work towards alternatives;
- Enhance consular protection, assistance and cooperation throughout the migration cycle;
- Provide access to basic services for migrants;
- Empower migrants and societies to realize full inclusion and social cohesion;
- Eliminate all forms of discrimination and promote evidence-based public discourse to shape perceptions of migration;
- Invest in skills development and facilitate mutual recognition of skills, qualifications and competences;
- Create conditions for migrants and diasporas to fully contribute to sustainable; development in all countries;
- Promote faster, safer and cheaper transfer of remittances and foster financial inclusion of migrants;
- Cooperate in facilitating safe and dignified return and readmission, as well as sustainable reintegration;
- Establish mechanisms for the portability of social security entitlements and earned benefits;
- Strengthen international cooperation and global partnerships for safe, orderly and regular migration.
Additionally, regional or bilateral treaties have been a traditional vehicle for regulating movement of persons between States. They cover fields such as labour mobility, readmission and extradition. Migrants also enjoy different minimum legal protection under applicable domestic law. The multiplicity of legal regimes is one of the challenges raised in the context of migration, as the level of protection granted to a person will depend on the legal framework that is applicable in a particular situation and to the individual concerned.
III. REGIONAL CONVENTIONS AND TREATIES ON MIGRATION AND FREEDOM OF MOVEMENT
A number of regional conventions have been adopted specially aiming at facilitating free movement of person and trade as well as respect for human rights within a given geographic area. They notably extend at regional level the national scope of the freedom of movement and of residency under human rights.
However, they only benefit to citizen and official resident of regional member States. They create additional layer of constraints for migrant coming from outside the region and for people with illegal presence on regional States territory. Economic regional integration schemes have been concluded in Africa, the Americas, and the Caribbean. The free movement regime of the European Union (EU) is the most accomplished regional system. (i.e., no borders-initiated harmonisation of national legislation through the adoption of a myriad of EU directives and regulations). It is also the one demonstrating the difficulties created for migration at the external borders of the EU.
The European region
The EU with its 27 States members and the Council of Europe with it 46 States members are the two distinct regional organisations in Europe with different level of cooperation and integration.
Within the territory of the 27 EU member States, the Treaty of the EU (TEU.2007) organise the free movement of EU persons (art. 3), guarantees their fundamental human rights (art. 6) as well as the equality of national citizens and the citizenship of the EU (art. 9) which was originally created by the adoption of the Maastricht treaty of 1992. The Dublin Convention adopted on 1 September 1990 (no longer in force) and the ensuing Dublin Regulation (Dublin II and III) establishes the responsibility of members States for the external borders of EU, including the management of migration and the examination of refuges request for asylum.
The EU New Pact on Migration and Asylum of September 2020 an attempt to reform the Dublin Convention and overcome the related European stalemate on migration and refugees. It aims to create more efficient and fair migration processes, reducing unsafe and irregular routes and promoting sustainable and safe legal pathways to those in need of protection. It balances the sovereignty of States and their capacity to host migrants and refugees with the solidarity of all EU States to ensure safety and protection to all migrants and refugees. However, since its presentation by the European Commission on 23 September 2020, the EU member States have not reached agreement on this New Pact.
The EU New Pact consists of a series of legislative proposals, roadmaps and recommendations that was put forward by the European Commission President. Notably, the Pact comprises the following legislative proposals:
- Regulation for Asylum and Migration Management;
- Regulation for Crisis and Force majeure;
- Screening Regulation, Qualification Regulation;
- Reception Conditions Directive (recast);
- Amended Asylum Procedures regulation;
- Return Directive (recast);
- Amended EURODAC Regulation; and
- Union Resettlement Framework Regulation.
The European Parliament is currently working on these legislations and the first votes at committee level are expected to take place in late 2022, early 2023. However, it should be noted that the escalation of the war in Ukraine in 2022, has created more of a spirit of unity among EU countries with the first-ever activation of the Temporary Protection Directive of EU on 4 March 2022. As well, in June 2022, progress on the need to provide solidarity balanced with responsibility regarding migration in Europe and on the gradual implementation of the EU new pact on Migration and Asylum was made. Indeed, a large majority of Member States (18) agreed, through a Solidarity Declaration, to start implementing a voluntary solidarity mechanism by offering relocations, financial contributions and other measures of support to Member States in need.
The European Convention on the Legal Status of Migrant Workers adopted in 1977 within the broader context of the Council of Europe aims to improve the status of migrant workers who are nationals of the Council of Europe member States, facilitate administrative procedure and ensure they are treated the same way as nationals of the receiving State. However, as of April 2023, this convention has only been ratified by 11 out of the 47 member States.
The Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) was adopted on 3 May 2005. The Convention is universal in scope as non-member States and the EU can also accede to it. As of January 2023, it has 48 member States. It covers all forms of trafficking (national or transnational, linked or not to organized crime) and all trafficked persons (men, women and children). The forms of exploitation covered by the Convention are, at a minimum, sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude and the removal of organs. The convention recognizes a range of rights for trafficked persons, including protection and assistance as victims, a recovery and reflection period of at least 30 days, a renewable residence permit and compensation for damages. It has a monitoring mechanism composed of the Group of Experts on Action against Trafficking in Human Beings (GRETA) and the Committee of Parties.
The Organization of American States (OAS)
The American Declaration of the Rights and Duties of Man adopted on 2 May 1948 is the first international human rights instrument for the American States. Although not legally binding, the Declaration is commonly used by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
The main articles relating to migration are found in Chapter II of the American Convention on Human Rights (ACHR), acknowledging that the human rights are binding on States toward all persons subject to their jurisdiction. This includes all people present on State territory whether lawfully or not. While the Freedom of Movement and Residence is limited to person lawfully present in the territory of a State Party (article 22(1)), other articles impose guarantees against expulsion of individual including those with unlawful presence in the country. Article 22(8) prohibit deportation or the return of an alien to a country where his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions, and article 22(9) prohibits collective expulsion of aliens.
The Cartagena Declaration on Refugee, adopted on 22 November 1984, which is a non-binding document, ensures the right to asylum, the principle of non-refoulement and the importance of finding durable solutions to migration. Compared to most of the international instrument on refugees, the Cartagena Declaration has a more extensive definition of refugee and persecution.
The African Charter on Human and Peoples’ Rights
The African Charter on Human and Peoples’ Rights (ACHPR), also known as the Banjul Charter, is the regional human rights instrument for the African Union. The ACHPR follows the footsteps of the other regional instruments but is quite particular as it recognizes specific rights for communities. Its article 12 acknowledges the right of movement and residence for all individuals outside their own country. However, this right is restricted to situation of lawful presence. It also acknowledges the right when persecuted to seek and obtain asylum and prohibit the mass expulsion of non-nationals (arts. 12(3) and (5)).
The African Union Convention Governing Specific Aspects of Refugee Problems in Africa is rooted in decolonization, the Apartheid, and the political and military uprising at the moment of its adoption. It brings a wider definition than the international convention and allow to consider refugee, people fleeing individual but also collective persecution, perpetrated by State and non-State actors as well as people fleeing in droves situation such as armed conflict. In the African context, the term refugee should therefore be largely applied to most movement of population fleeing persecution, while the term migrant would apply mainly to migrant workers.
The League of Arab States and the Association of Southeast Asian Nations:
These two other regional organizations are still at the embryonic stage that are due to develop in the coming years in line with their involvement in huge flow of migrant workers.
The 22 states members of the League of Arab State adopted the Arab Charter on Human Rights (Arab Charter) on 22 May 2004 and it currently has 16 States members. It reaffirms the main human rights principle that can be found in other instrument such as the Universal Declaration of Human Rights. States members of the Arab league are important countries of international migration for employment. For instance, in 2019, it was estimated that 41.4% of the labour force of the Arab States was composed of migrant workers. They did not adopt a special declaration on the protection of migrant workers.
The Association of Southeast Asian Nations (ASEAN) was established on 8 August 1967. It counts 10 states members and has two legal instruments that are mainly related to migrants: the Charter of the Association of Southeast Asian Nations and the 2007 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers. The Declaration identified three themes summarising the obligations and commitments of States parties: (i) protection of migrant workers against exploitation, discrimination, and violence; (ii) labour migration governance; and (iii) fight against trafficking in persons.
The ASEAN Declaration on the Rights of Children in the Context of Migration adopted in November 2019 agrees notably to take into account the special vulnerability of children in the process of migration; provide access to basic services such as health, a clean and safe environment, and psychosocial support services for children in the context of migration; facilitate the registration of all children born in the territory and provision of birth certificate in accordance to the respective prevailing laws and regulations; promote the best interests of the child and develop effective procedures and alternatives to child immigration detention to reduce its impact, and ensure that, where possible, children are kept together with their families in a non-custodial, and clean and safe environment. The ASEAN Guidelines on Effective Return and Reintegration of Migrant Workers adopted in November 2020 acknowledge the need for a stronger shared responsibility between sending and receiving States with regard to assessing and answering the needs of returning migrants as per their economic, social and cultural reintegration, as well as their social protection. They also aim to target support to the risks faced by different groups of vulnerable migrants such as women migrant workers. In particular, domestic workers, and migrants in informal or irregular situation.
IV. MIGRATION AND FUNDAMENTAL HUMAN RIGHTS
Human rights-based instruments are central to the respect of migrants’ rights. While there are several legal instruments involved in the protection of migrants and refugee, from specific treaty to general IHL principles protecting civilians, there may be situations where no specific provision can be used to protect migrants. This is where human rights-based instruments are the most important.
Migrants are an easy target of human rights violation for a wide range of reasons. For example, discrimination based on xenophobia or prejudices, that can be entrenched in domestic laws, pure denial of civil and political rights (such as arbitrary detention, torture, or a lack of due process) or economic, social and cultural rights (such as the rights to health, housing or education) are common basis for human rights violations of migrants. Irregular migrants are particularly affected by these violations considering their fear to raise a complaint due to their unclear status. They can thus be exploited, marginalized or their human rights and fundamental freedoms can be denied.
In addition to the 1990 convention on the protection of the rights of all migrants workers and their family, IHRL, defines the rights of all human beings. Although domestic human rights may only be available to citizen and regular resident of a State, fundamental human rights are applicable without distinction to everyone within the territorial jurisdiction of a State including to irregular migrant.
Migration is linked to fundamental human right such as the prohibition of torture and ill treatment, the right to freedom of movement and establishment within the country of residence; the right of each human being to leave his own country and to come back; the right of each human being to flee persecution and to not be sent back to a place where his life and security are in danger. Other specific human rights are of great importance for migrant such as the prohibitions against refoulement, expulsion, detention and the respect of family rights.
a) Expulsion and Principle of nonRefoulement (PNR)
Although States have the right to regulate migration and it is within their sovereign right to expel migrants from their territory if they are deemed irregular, this right is not absolute and must obey strict conditions and procedural guarantees.
Any decision to return a specific migrant must be exercised within the limits established by domestic and international law, in particular the PNR. The scope of the protection afforded by international law against refoulement for a specific migrant does not depend on its situation being irregular or not but rather on the risk associated to a return to his country of origin.
To allow such ad hoc individual assessment of risk in relation to any forced return of migrant, international law -both universal or regional- impose a clear prohibition of collective expulsions. Any expulsion must respect the content of the PNR including specific procedural guarantees
International refugee law sets out specific rights for refugees and asylum seekers; Notably, as refugee status is declaratory, it is not necessary for a person to have been officially recognized as such to be protected. This is relevant for the issue of migration as in practice it entails that all migrants seeking international protection be given access to asylum procedures. This access to individual determination process is also mandatory before any decision of an individual expulsion.
b) Migration and detention
Many migrants are detained because they entered or remained in a country while being in an irregular immigration situation. Detention is usually exercised by immigration officers, for a variable amount of time necessary to organise the expulsion of irregular migrant and obtain their readmission in returning State. This is also the time to assess the PNR and risks related to expulsion. This detention is therefore often based on an administrative retention framework rather than on a judicial one. Each State acts differently when it comes to dealing with irregular migrants and the need to use administrative retention or not. It is important to note that such detention is a practice condemned by the UNHCR. The international convention on refugees explicitly provides that irregular entry and stay on a territory by people in search of asylum cannot lead to any form of legal sanction and detention (art. 31). Seeking asylum and being an undocumented migrant are not unlawful under international refugee law as demonstrated by the PNR and article 31(1) of the 1951 Convention which prohibits the penalization of refugees for illegal entry or presence, provided they come directly from countries where their life was threatened and show “good cause” for violating applicable entry laws.
Furthermore, under IHRL, detention of irregular migrant should only be used in exceptional circumstances and following specific requirements that respects the right to liberty and security (which forbids arbitrary detention). In most situation, detention of migrant will fail to meet the requirement of being legitimate, necessary, proportionate and assessed on an individual basis. Even if the term detention is not officially used in relation to migrant, it falls undeniably within the scope of deprivation of liberty defined as “any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority” (see article 4(2) of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).
c) Humane treatment in times of peace and armed conflict
Humane treatment, although not fully defined, usually refers to the respect for the dignity of a person or the prohibition of ill-treatment. Found in IHL and IHRL, the notion of humane treatment is understood to evolve over time and implies a minimum standard of treatment. Under IHL, violence to life, torture, cruel or inhuman treatment and outrage upon personal dignity, are incompatible with the requirement of humane treatment. International and regional human rights instruments have therefore the same approach.
Armed conflicts and any other situation of violence contribute to migration flows through displacement of population affected by the conflict or violence. Additionally, IHL also protects foreign migrants or refugees present on the territory of country affected by armed conflict like any other civilian in both international and non-international armed conflicts. This protection applies even if they are not in possession of their official documentation (undocumented migrants).
Migrants are protected under the fourth Geneva Convention and Additional Protocol I in times of international armed conflict. They will also benefit from additional protection if they qualify as a protected person or as a refugee. To be considered a protected person, the migrant must have been recognized as a refugee by international law or domestic law of the State of refuge or its State of residence before the beginning of the hostilities (API, art. 73). Protected people also have the right to leave the armed conflict territory voluntarily, except if their leaving goes against national interests.
During a non-international armed conflict, all people not taking a direct part in the hostilities are protected under Common article 3 of the Geneva Conventions as well as by APII and by rules of customary IHL. Their protection under these rules includes the right to human treatment, at all times, without discrimination and a respect for their fundamental guarantees (prohibition of violence, personal dignity, fair trial).
Other IHL rules also apply in specific circumstances, such as for the maintenance or re-establishment of family links and the clarification of the fate and whereabouts of missing and dead migrants.
V. THE WORK OF INTERNATIONAL ORGANISATIONS AND UN AGENCIES FOR MIGRANTS
The movement of persons across international borders is a complex phenomenon. Regardless of the reasons for leaving, individuals may become vulnerable at any stages of their journey and their risks can shift along the route, raising serious humanitarian concerns regarding their needs of assistance and protection. Many international actors are involved in the provision of legal and humanitarian assistance to migrants.
The ILO remain in charge of labour law for migrant since it is the main organisation in charge of regulating labour law applicable to migrant workers.
The OHCHR is the UN body leading the human rights-based approach to migration. It highlights the need to include all vulnerable people in national strategies to combat racism and xenophobia and programs on basic rights. It monitors State practice notably through the work of its Special Rapporteur on the Human Rights of Migrants. The mandate of the special rapporteur was set up in 1999 by resolution 1999/44 of the UN Human Rights Council. This mandate is renewed every three years and covers all countries, whether or not a State has ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families of 18 December 1990. It is an independent expert body who produces reports and recommendations on various issues and violations of migrants’ rights such as its report on the Practice of push back on land and at sea (May 2021) or regarding Human Rights Violations at International Borders: Trends, Prevention and Accountability (April 2022). This mandate complements the one of the Independent Committee established by the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 18 December 1990 to examine periodic reports provided by States concerning the implementation of their treaty obligations, and to examine under certain restrictive conditions communications concerning alleged violations. ➔ Human Rights ▸ Special Rapporteurs ▸ United Nations High Commissioner for Human Rights
The IOM develop policies and programs to answer basic human rights needs caused by migration and to contribute to safe and orderly migration with instruments such as the global compact for migration. It is also engaged into emergency and post-emergency projects to provide on the field, humanitarian assistance to migrants in need.
The UNHCR is the leading UN entity on refugees’ rights. The UNHCR supports leading actors on migration, through its collaboration on project like the 2030 Agenda for Sustainable Development, the Global Forum on Migration and Development, and the High-Level Dialogue on International Migration and Development. ➔ Refugees ▸ UNHCR
The ICRC engagement and activities on behalf of persons fleeing across international borders are defined by their needs and vulnerabilities, regardless of their legal status. Therefore, the ICRC — as the rest of the Red Cross and Red Crescent Movement — uses a broad description of “migrants”, which includes refugees, asylum seekers and irregular migrants, to capture the full extent of humanitarian concerns related to migration and to provide sufficient flexibility to address needs found in these often-complex situations. Drawing on the presence in countries of origin, transit and destination, the ICRC has increasingly focused its activities to assist persons separated as a result of an armed conflict. To better serve migrants and their families, the Family Links Network, made up of the ICRC and 189 National Societies, has adapted its services to their specific needs and to the challenges of restoring family links across numerous borders. It helps prevent people from disappearing or getting separated and works to restore and maintain contact between family members when and wherever possible. Together with National Societies, the ICRC has also developed programs aimed at the families of missing migrants, including to help them cope by strengthening their existing resources and capacities to overcome problems, and providing a support network to which they can turn in case of need. In order to achieve the proper and dignified handling and identification of bodies of dead migrants, the ICRC offers humanitarian forensic support, encourages communication and cooperation among forensic services and other agencies and organizations, and promotes forensic best practices (bodies are handled in a proper and dignified manner, death is documented, and the remains of the person are identified as far as possible so that bodies can be repatriated and/or given a proper burial.) The ICRC also work with authorities to ensure that, where possible, they notify the families and issue an official death certificate.
✎Searching missing migrant
ICRC Restoring Family Links website
Missing Migrant Project website, IOM
For Additional Information:
Chetail, Vincent, “Armed Conflict and Forced Migration: A Systematic Approach to International Humanitarian Law, Refugee Law, and International Human Rights Law” in The Oxford Handbook of International Law in Armed Conflict, Clapham, Andrew and Gaeta, Paola, Oxford University Press, 2014: 700-734.
Constellation of the Communes, Outsourcing borders and CEAR-Euskadi (2010): Forced displacement: Human Rights from the perspective of the Right to Asylum. Claims and proposals for change. Commission for Aid to Refugees in Euskadi , Bilbao. Available at https://constelaciondeloscomunes.org/en/co-diccionary/outsourcing-borders/#:~:text=%E2%80%9CThe%20outsourcing%20of%20borders%20is,arrival%20of%20refugees%20and%20immigrants
Duhaime, Bertrand and Thibault, Andréanne, “Protecting migrants from enforced disappearances”, International Review of the Red Cros s, Vol. 99(2)84, No. 848 (December 201702) p. 569-587. Available at https://international-review.icrc.org/sites/default/files/irrc_99_905_7.pdf
European Commission, Press Release, A fresh start on migration: Building confidence and striking a new balance between responsibility and solidarity , 23 September 2020. Available at https://ec.europa.eu/commission/presscorner/detail/en/ip_20_1706
Guy S. Goodwin-Gill, Article 31 of the 1951 Convention relating to the Status of Refugees: Non-penalization, Detention and Protectio n, October 2001. Available at https://www.unhcr.org/3bcfdf164.pdf
International Federation of Red Cross and Red Crescent Societies, Policy on Migration , 2009. Available at https://www.ifrc.org/Global/Governance/Policies/migration-policy-en.pdf
International Labour office, Global Estimates on International Migrant Workers Results and Methodology , Third edition, Geneva, June 2021. International Organisation on Migration, World Migration Report 2022. Available at https://publications.iom.int/system/files/pdf/WMR-2022_0.pdf
International Migration Law: Glossary on Migration , available at https://publications.iom.int/system/files/pdf/iml_34_glossary.pdf
Obregón Gieseken, Helen, Ouellet-Décoste, Éloïse, IHL & the protection of migrants caught in armed conflict , Humanitarian Law and Policy blog, 4 June 2018, available at https://blogs.icrc.org/law-and-policy/2018/06/04/ihl-protection-migrants-armed-conflict/
Obregón Gieseken, Helen, “The protection of migrants under international humanitarian law”, International Review of the Red Cross , Vol. 99, No. 904, April 2017: 121-52.
OHCHR, The Global Compact on Migration: factsheet , available at https://www.ohchr.org/Documents/Issues/Migration/GlobalCompactMigration/Protection.pdf
A/HRC/50/31: Human rights violations at international borders: trends, prevention and accountability , 26 April 2022. Available at https://www.ohchr.org/fr/documents/thematic-reports/ahrc5031-human-rights-violations-international-borders-trends-prevention
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UNHCR, Detention guidelines , available at https://www.unhcr.org/publications/legal/505b10ee9/unhcr-detention-guidelines.html Global trends: Forced displacement in 2021. Available at https://www.unhcr.org/62a9d1494/global-trends-report-2021
United Nations Secretariat, Department of Economic and Social Affairs, Forced Migration and Undocumented Migration and Development , (UN/POP/EGM/2018/11), 31 October 2018. Available at https://www.un.org/en/development/desa/population/events/pdf/expert/28/EGM_Holly_Reed.pdf
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