Article 22 of the ICRMW dictates that States ensure that procedural safeguards are in place to protect migrants during individual expulsion proceedings. Refugees journeying from the coast of Libya crowded on a small vessel as they entered Italy in 2014. To ensure this right, the CMW notes that States have an obligation to eliminate school fees and minimize the impact of costs for school materials and uniforms. She stated that according to several UN human rights bodies, detaining migrant children may constitute cruel, inhuman or degrading treatment that is prohibited under international law. 100) (adopted 29 June 1951, entry into force 23 May 1953), 165 UNTS 303. This is stated, for example, in the United Nations Convention of the Law of the Sea (UNCLOS) Article 98 the International Convention for the Safety of Life at Sea (SOLAS), Regulation V-33. Additionally, the Committee suggested that States implement monitoring systems concerning child rights violations in the workplace. 6. For example, the ICRMW obligates States parties to “pay attention to the problems that may be posed for members of his or her family, in particular for spouses and minor children” when a migrant worker is detained and to “take appropriate measures to ensure the protection of the unity of the families of migrant workers.” See ICRMW, arts. While the guarantee against arbitrary removal from a State as provided for under Article 13 of the International Covenant on Civil and Political Rights does not protect undocumented migrants, if the status of a migrant is in dispute, the Human Rights Committee has stated that a State must still take the rights under Article 13 into account. See International Commission of Jurists, Migration and International Human Rights Law: A Practitioners’ Guide (2014), 54. Procedural guarantees in expulsions and the right to a remedy 166 1. 8. The International Migrants Bill of Rights (hereinafter IMBR) is the result of a two-year collaboration between students at the American University in Cairo, Georgetown University Law Center, and Hebrew University in Jerusalem. Despite the plethora of human rights concerns associated with human smuggling, it is in fact the law enforcement imperative — the war against terrorism, narcotics, and irregular migration — that have moved this issue up the international policy agenda. Under the Protocol, States must consider implementing measures to provide for medical and psychological assistance; employment, education, and training opportunities; housing; and counselling on legal rights. States that have ratified the Protocol have an obligation to provide protection and assistance to persons that have been smuggled, including by respecting a person’s right to life and the right not to be subjected to torture or other cruel, inhuman, or degrading treatment or punishment. See Office of the United Nations High Commissioner for Human Rights (OHCHR), Migration and Human Rights: Improving Human Rights-Based Governance of International Migration (2013), 7. 2, 28 August 2013, para. In line with US obligations under the international human rights treaties to which it is party: prohibit the practice of family separations; initiate a criminal investigation into the practice, and the harm it has caused to those subjected to it; hold accountable all those who authorized the practice; and grant comp… States’ obligations with respect to non-refoulement also apply extraterritorially whenever they operate and hold individuals abroad, including in the context of armed conflict or offshore detention or refugee processing facilities. Human Rights and the Definitions of Smuggling and Trafficking. Unlike under the 1951 Refugee Convention, which bases the principal of non-refoulement on the individual’s refugee status, non-refoulement in the context of the Convention against Torture applies regardless of refugee status. Guy S. Goodwin-Gill: Expulsion in Public International Law Mr. Many of the relatively nascent precepts contained within the 1951 Refugee Convention have now been rearticulated, recontextualised, and in some cases expanded in a comprehensive suite of international human rights treaties. While the IMBR addresses migrants’rights is that the UN may not intervene in the domestic affairs of states. Some human rights bodies and experts differentiate between international migrants and internal migrants, also known as internally displaced persons, and between migrants who were forced to move and migrants who voluntarily moved to improve their situation. E/C.12/GC/19, 4 February 2008, para. Id. 30: Discrimination against non-citizens, 19 August 2004, prmbl. 5.2. Last modified June 7, 2015, “Being an immigrant woman is not easy for anyone, especially in a big city like NYC. 27765, ECHR 2012, Judgment of 23 February 2012, paras. 100), ILO Migrant Workers (Supplementary Provisions) Convention, 1975 (No. The Human Rights Committee found that when it is possible for a substantive human right to be violated during an individual expulsion, extra procedures are necessary to guarantee the right to an effective remedy and a stricter form of strict scrutiny must be applied to the expulsion proceeding. . 3. In 2005, the We supported each other and I always had someone being there for me." You can adjust all of your cookie settings. 138 concerning Minimum Age for Admission to Employment, No. A/RES/32/120, 9 December 1975, para. 105), Thematic Guide on Asylum & The Rights of Refugees, UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, African (Banjul) Charter on Human and Peoples’ Rights, Convention for the Protection of Human Rights and Fundamental Freedoms, ILO Declaration on Fundamental Principles and Rights at Work, 1951 Convention relating to the Status of Refugees, No. 27. Under EU law, some of the requirements elaborated in the European Court of Human Rights (ECtHR) case law have been included in the Asylum Procedures Directive (2013/32/EU). that had ratified the convention, including many receiving countries (countries of destination of migrants). This article has been written by Ishaan Banerjee, from Vivekananda Institute of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University.This article explores whether the right to counsel for detained migrants has to be universal and if it should be extended to deportation and immigration proceedings where they are of a civil nature through the lens of international law. See General Comment No. (see “A ‘Timeless’ Treaty Under Attack”). This report gives an overview of the international legal framework containing norm relevant to the protection of child migrants. 29), Abolition of Forced Labour Convention, 1957 (No. The convention applies to all migrant workers regardless of their legal status and seeks to guarantee their most fundamental human rights are protected during the entire migratory process, including preparation, departure, transit, and the eventual stay, residency, and employment in another country. For example, Article 2(2) of the International Covenant on Economic, Social and Cultural Rights states, “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entry into force 3 January 1976), 993 UNTS 3, art. 2, 28 August 2013, para. Additionally, States parties are obliged to endeavor to ensure trafficked victims’ physical safety and must ensure that victims have access to remedies to compensate them for their injuries. Specifically, States may reserve the right to vote and to be elected to political office to its citizens. We supported each other and I always had someone being there for me." 2; Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008), 12 Int’l Hum. 1. See ILO Forced Labour Convention (No. When migrants belong to one of the groups protected by the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), or the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), the equality and non-discrimination provisions are also applicable to them. One of the first stipulations in Article 2 of the. While the core human rights standards apply equally to migrants and non-migrants, regardless of their legal status in a country, and prohibit discrimination on the basis of national origin, there are exceptions to these rules. 29), art. E/C.12/GC/19, 4 February 2008, para. See id. The Committee on Migrant Workers elaborated that if reimbursement is impossible, States should provide objective reasons for reaching its decision in each case. See ICCPR, art. 23: Article 27 (Rights of Minorities), 8 April 1994, para. Council of Europe and European Union Agency for Fundamental Rights. See also Human Rights Committee, General Comment No. The Human Rights Committee has found that Article 13, which regulates the procedural aspect of expulsion, prohibits collective or mass expulsions. There are an estimated 38 million migrant children, three out of four international migrants are of working age, meaning between 20 and 64 years old. 5(2); ArCHR, art. The international law of the sea in particular has developed provisions concerning the rescue and protection of individuals, including migrants, lost at sea. See African Charter, art. So, they often support restrictive migration policies even though they have proven largely ineffective in reducing migration inflow. 38. International human rights law does allow States to treat citizens and non-citizens differently if the difference in treatment serves a legitimate State objective and is proportional to its achievement. Therefore, generally, there are four categories of mobile persons to which international law may refer: people who have moved voluntarily within one State for the purpose of improving their situation, people who were compelled to move internally within one State, people who moved voluntarily across a border for the purpose of improving their situation, and people who were compelled to move across a border. See Human Rights Committee, Ahani v. Canada, Communication No. international law, which are applicable to migrants and refugees. The directive sets out very detailed rules on common procedures for granting and withdrawing international protection. nationals.” See CRC, General Comment No. Migrants Bill of Rights (IMBR) provide an opportunity to highlight the need for States to ensure that migrants receive the protections to which they are entitled under human rights law. See, e.g., Committee on Elimination of Racial Discrimination (CERD), General Recommendation No. 1. By analysing with great accuracy how the rights of refugees under international law should be defined, it is hoped that he has left little space for States and other actors to contest the scope of these rights. See General Comment No. at art. Such determinations can be made on an individualized basis or through group-based mechanisms (such as prima facie recognition or the provision of temporary protection). 13229/03, ECHR 2008, Judgment of 29 January 2008, paras. Migrants are generally entitled to the same human rights protections as all individuals, although States may limit migrants’ rights in some ways, such as with regard to voting and political participation. Article 12 of the International Covenant on Economic, Social and Cultural Rights establishes the right to attain the highest standard of health for all persons, and the Committee on Economic, Social and Cultural Rights concluded, “persons, irrespective of their nationality, residency or immigration status, are entitled to [both] primary and emergency medical care.” See CESCR, General Comment No. 2(2). The duty to rescue. States’ obligations include adhering to the principle of non-refoulement (not returning individuals to places where their lives would be threatened), providing access to fair and efficient asylum procedures, and ensuring respect for basic human rights. The International Convention on the Protection of the Rights of Migrant Workers and Members of their Families (ICRMW) defines migrant worker under Article 1 as “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.” See International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 01 July 2003), 220 UNTS 3, art. 30: Discrimination against non-citizens, UN Doc. International refugee law or international human rights treaties neither articulate an explicit entitlement to asylum for the individuals concerned, nor impose an obligation on states to grant asylum. 98) (adopted 1 July 1949; entry into force 18 July 1951), 96 UNTS 257; ILO Equal Remuneration Convention, 1951 (No. A/CN.4/581, 19 April 2007, para. 10.6-10.8. Like international human rights law, modern refugee law has its origins in the aftermath of World War II as well as the refugee crises of the interwar years that preceded it. The Committee on Migrant Workers (CMW) noted that while the ICRMW outlines the minimum rights afforded to migrant workers, States may expand the scope of these rights, including with respect to irregular migrants. 97) protects migrant workers specifically, guaranteeing basic rights such as access to health care and the right to nondiscrimination. Since that time, other international bodies have made a point of using these terms to avoid the stigma attached to terms such as “illegal migrant.” See, e.g., Council of Europe Parliamentary Assembly, Resolution 1509 (2006), Human Rights of Irregular Migrants, 27 June 2006, para. 143), International Labour Organization Domestic Workers Convention, 2011 (No. 189 concerning decent work for domestic workers, American Declaration on the Rights and Duties of Man, Special Rapporteur on the human rights of migrants, United Nations High Commissioner for Refugees, Global Forum on Migration and Development, Inter-American Commission of Human Rights, Special Rapporteur on refugees, asylum seekers, migrants and internally displaced persons, Handbook on European Law Relating to Asylum, Borders and Immigration, Promotion and protection of human rights, including ways and means to promote the human rights of migrants, Migration, Remittances, Diaspora and Development, Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License. (a)(iii). The Human Rights Committee has explicitly stated that, with the exception of Article 25 of the ICCPR, which pertains to political participation, all the rights guaranteed in the ICCPR apply to migrants. INTERNATIONAL FRAMEWORKS FOR MIGRATION. 2, 28 August 2013, paras. Migrants’ rights in the most extreme situations (e.g. Trafficking in persons is a crime that can occur within the borders of a State or across borders, affecting migrants and internally displaced persons. Article 30 of the ICRMW expands on this obligation, noting that States may not refuse or limit a child’s access to public pre-school educational institutions or schools based on a parent’s or child’s irregular situation. See UN High Commissioner on Refugees, Handbook on Protection of Stateless Persons (2014), para. Migrant children have special protections regarding the right to health under international human rights law. Conventions that apply speCifiCally to migrant workers Historically, the ILO has led the way in defining and Article 3(a) of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children defines trafficking in persons as: The recruitment, transportation, transfer, harboring 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. The following provisions prohibit discrimination on the basis of national origin, protect the right to a nationality, or address the special protections owed to migrants: There is no clear, universally agreed upon definition of a migrant, sometimes referred to as international migrant. 23: Article 27 (Rights of Minorities), UN Doc. Furthermore, under International Law the EU itself is bound by human rights obligations in so far as they are contained in Customary International Law and any treaties to which the EU is party, such as the Convention on the Protection of Human Rights and Fundamental Freedoms and the Convention on the At the national level in many countries, migration remains a very divisive issue — as can be seen for example in the. 14. The ICCPR and regional human rights treaties also prohibit torture and cruel, inhuman, or degrading treatment. In addition, dedicated experts within the African and Inter-American human rights systems specifically monitor migrants’ human rights. It took over ten years for the text to take effect, after the necessary 20 ratifications were reached in 2003. at para. See Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 28 January 2004), 2241 UNTS 480, art. States may also restrict non-citizens’ ability to enter and remain in the country, subject to the procedural and substantive limitations described above, including the principle of non-refoulement. 105) (adopted 25 June 1957, entry into force 17 January 1959), 320 UNTS 291; International Covenant on Civil and Political Rights (adopted 16 December 1966, entry into force 23 March 1976), 999 UNTS 171, art. This article traces back the historical origins of migrants' rights and analyses their contemporary features under general international law. Migration — Migrants, rights — International labour law — Full protection and security — Fair and equitable treatment standard Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). Furthermore, the Committee on the Elimination of Racial Discrimination noted that States have an obligation to “ensure… the right of (undocumented) non-citizens to an adequate standard of physical and mental health by, inter alia, refraining from denying or limiting their access to preventive, curative and palliative health services.” See General Recommendation No. Inter-American Commission on Human Rights. States have an obligation to provide free and compulsory primary education at public institutions for all children. ment of aliens (Lillich, 1984:34). For human rights bodies' schedule and activity changes due to the pandemic, see our Monthly Overview posts or the IJRC Hearings & Sessions Calendar. Convention and Protocol Relating to the Status of Refugees, became the cornerstone of the international legislation governing the legal status and rights of refugees, a specific category of migrants. International law is less developed in this area. at para. Rts. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their … Particular focus is on the International Convention on the Rights of the Child (CRC), since this widely ratified instrument constitutes the most all-encompassing basis for the protection of children, including children who are outside their State of 17(6), 44. We supported each other and I always had someone being there for me." 25(3). Guy S. Goodwin-Gill 2(1); International Convention on the Elimination of all Forms of Racial Discrimination (adopted 7 March 1966, entry into force 4 January 1969), 660 UNTS 195, art. The Inter-American Court of Human Rights held in its Advisory Opinion On the Juridical Conditions and Rights of Undocumented Migrants that the principle of equality and non-discrimination has reached the status of jus cogens or a peremptory norm of general international law. See id. 9(1). See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entry into force 25 December 2003), 2237 UNTS 319, art. As part of the duty to respect and ensure international human rights law, States have an obligation to provide adequate, appropriate, and effective remedies to victims of violations of international human rights law and international humanitarian law. 28(1)(a); ICESCR, art. The State has a positive obligation to protect the right and the identity of the minority group through policy initiatives and to prevent the infringement of the right by third parties. The right to have one’s cause heard includes: (a) the right to an appeal to competent authorities; b) the right to be presumed innocent until proven guilty by a competent court or tribunal; c) the right to defense, including the right to choose defense counsel; and d) the right to be tried within a reasonable time by an impartial court or tribunal. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, and No. 12; ICRMW, art. While the IMBR addresses migrants’rights in a variety of contexts, this paper will look closely at some of the most crucial rights that apply to migrants, refugees and asylum seekers 1 who are held in immigration detention. Article 3(a) of the UN Protocol against the Smuggling of Migrants by Land, Sea and Air defines smuggling as 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.” Unlike trafficking in persons, smuggling does not require exploitation or coercion and necessarily requires the crossing of a border. 33(1). The International Migration Law Unit was established within IOM to strengthen and promote the Organization’s involvement in International Migration Law (IML). Major receiving countries have yet to become parties to the convention. Several universal human rights treaties and the fundamental ILO Conventions provide for workers’ rights to just working conditions and equal pay, the ability to form and join trade unions, and access to social security. Article 14(1) of the Universal Declaration of Human Rights (UDHR), which was adopted in 1948, guarantees the right to seek and enjoy asylum in other countries. See id. See I/A Court H.R., On the Juridical Conditions and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, 17 September 2003, para. A key objective of the Unit is to encourage dissemination and understanding both within IOM and amongst IOM counterparts of the international legal standards that govern migration and provide protection of the rights of 67-74. According to the principle of non-refoulement, States must not deport a migrant to a country where he or she is likely to face torture or serious human rights violations. 2]. Read a more detailed overview of the discussion, The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. 3; Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953), 213 UNTS 221 (European Convention on Human Rights, as amended) (ECHR), art. The prohibition of torture is a jus cogens or peremptory norm of international law, which means that States have an obligation to enforce the prohibition of torture even if that State has not ratified a relevant treaty. According to the CMW, States have certain obligations to ensure the migration status of a child or a child’s parents does not prevent the child from receiving an education. 13.2(a), 14; American Convention, art. Hathaway links the standards of the UN Refugee Convention to key norms of international human rights law, and applies his analysis to the world's most difficult protection challenges. A/RES/60/147, 16 December 2005, arts. Cookie information is stored in your browser and performs functions such as recognising you when you return to our website and helping our team to understand which sections of the website you find most interesting and useful. right of asylum, one must first ascertain its contours and understand the state of that right in international law today. See American Convention on Human Rights “Pact of San José, Costa Rica” (adopted 22 November 1969, entered into force 18 July 1978), 1144 UNTS 123, OASTS No. States parties to the Statelessness Convention have the obligation to guarantee stateless persons certain rights, including but not limited to the right to non-discrimination (Article 3); the right to a personal status (Article 12); the right to identity papers (Article 27) and travel documents (Article 28); and the right to due process, particularly with respect to expulsion proceedings (Article 31). 9. This website uses cookies to improve your experience. 115. a crime under international law 162 3. The rights discussed below apply to all migrants and do not comprise an exhaustive list. 36. 3.2% of the world's population are international migrants. WANT TO MAKE A DIFFERENCE FOR NEW WOMEN NEW YORKERS? rights of international migrants, including the 1990 Convention, the 1997 Working Party and two ILO Conventions related to migrant workers’ rights, the Guiding Principles on Internal Displacement have increasingly gained international standing and recognition. on whether the refugee convention has become outdated and irrelevant, in the changed global context. See, e.g., ILO Migrant Workers (Supplementary Provisions) Convention, 1975 (No. Other universal and regional human rights bodies have found that migrant workers have a right to social security. 27; Human Rights Committee, General Comment No. See ECtHR, Hirsi Jamaa and Others v. Italy [GC], no. Additionally, many of the major human rights instruments prohibit the collective expulsion of aliens. See id. The International Labor Organization (ILO) has a supervisory system to ensure the compliance of Member States with the standards it develops. On the other hand, a rights-based approach acknowledges that the rights of migrants are granted mainly by human rights la… On the international level they continue to hold on to these so-called “symbolic policy instruments,” which articulate aspirations to improve migrant issues, but don’t necessarily lead to change. Categories of persons at danger at sea % of the Special Rapporteur UN. Vote and to be elected to political office to its citizens rights council ’ s Thematic Guide asylum! High Commissioner on refugees, Handbook on protection of the, human rights adopted. Migrants during individual expulsion proceedings someone being there for me. persons, Doc... 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