Migration Legislation, State Sovereignty and Human Rights

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Migration Legislation, State Sovereignty and
Human Rights

• Jillyanne Redpath
• Senior Legal Officer
• IOM

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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

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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

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RIGHT TO REMOVE

• 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

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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

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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

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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

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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

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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

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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

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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

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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.