E.g., 10/24/2014
E.g., 10/24/2014

Human Rights Strengthen Migration Policy Framework

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Human Rights Strengthen Migration Policy Framework

International law presents us with something of a conundrum. There is a right to leave your country and a right to return to your own country. There is, however, no corresponding right to enter or remain in another country, as of yet. Ultimately the decision on who should enter a country remains an exercise of national sovereignty. Such discretion is not completely unfettered, however.

A wide variety of international instruments provide the parameters within which the sovereign right of states to regulate admission to territory is situated. Human rights is one such body of law and clearly articulates a framework in which traditionally sovereign questions regarding admission, treatment and removal of non-nationals should be situated.

The concept of human rights is, of course, nothing new. Many states and communities have been established on the basis that individual members have certain inherent rights which must be respected by those in power. These can be derived from religious, political, moral, or social ideas. Fundamentally, they are an expression common to all peoples, of a wish to live freely and securely in a just and peaceful world.

Human Rights that are Protected in International Law
The United Nations' Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC) both extends, reinforces and in some cases, limits, the human rights of migrants that are found in the other instruments.

It explicitly protects the rights of undocumented migrant workers, although this is also combined with measures to combat illegal immigration. Another innovation is that the MWC guarantees rights to migrant workers directly against their employers as well as against the state. It also extends the rights of migrants through provisions on the right to transfer earnings, savings and belongings, protection against the unauthorized destruction of documents and the right to be informed of rights under the Convention.

In addition to the MWC, migrants benefit from a broad range of human rights protections, enshrined in customary international law and also in the following instruments, amongst others:
  • The International Covenant on Civil and Political Rights (ICCPR, 1966)
  • The International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966)
  • The Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 1965)
  • The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979)
  • The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1984)
  • The Convention on the Rights of the Child (1989)

Each of these instruments is overseen by supervisory bodies that can provide interpretive guidance and, in some cases, consider individual complaints. The MWC is itself supervised by a Committee. The Committee, made up of 10 independent experts, will examine reports considered by each state party and potentially has the ability to hear individual complaints.

A number of other mechanisms based on the UN Charter exist which can be useful to migrants and their advocates. Most notably, the Working Group on Arbitrary Detention, the Special Rapporteur on Racism, the Special Rapporteur on the Rights of Migrants, and a recently established Special Rapporteur on the issue of Trafficking.

ILO Standards, which predate UN codification, are also important in this area and are complementary to human rights protections Ð ILO Conventions 97 concerning Migration for Employment and 143, concerning Migration in Abusive Conditions and the Promotion of Equality of Opportunity and treatment of Migrant Workers, are particularly worthy of note, as is the 1998 Declaration on Fundamental Principles and Rights at Work, which binds all ILO members.

In addition to these universal instruments, there are also a variety of regional human rights instruments that have been adopted over the years that are of use to migrants, including the 1981 African Charter on Human and Peoples Rights, the 1969 American Convention on Human Rights, and the 1950 European Convention on Human Rights.

But the idea that these rights should be protected at an international level is relatively recent and corresponds with the establishment of the United Nations itself, the 1945 UN Charter and the 1948 Universal Declaration of Human Rights. Since then, an elaborate and dynamic process of articulating what human rights actually are has taken place.

Human rights are intimately connected with every step of the migration process — they are often implicated in the reasons why people move; they feature in the treatment that migrants encounter in transit, the issue of their integration in host communities; and the question of return. But the vision, language, and framework of human rights are particularly important in a discussion of migration for a variety of other reasons.

Human Rights as a Tool for Empowerment

First of all, human rights are universal and inalienable — in other words, human rights apply everywhere and to all human beings by virtue of their humanity. This, of course, includes migrants, and applies regardless of their legal status in the host society. Given the often marginalized position of migrants in host societies, human rights can be and are a powerful tool for mobilization and empowerment.

This not only applies to the migrants' position with respect to the state. The human rights framework also emphasizes "participation" and access to information regarding decisions that affect a person's core human rights. It is thus also a powerful medium through which migrants can take control of their destinies, even with respect to those who represent them.

Types of Human Rights
Life, liberty, and physical integrity of the person
These include the rights to be treated with humanity, dignity, and with due process of law, and prohibitions on arbitrary killing and detention, torture, and other cruel treatment.

Civic freedoms
Basic freedoms protected include freedom of thought, opinion and expression; religious belief and practice; movement within a state; and the right to peaceful assembly and association. Other civil rights include the protection of privacy and family life and the right to equality before the law.

Political rights
In addition to freedom of speech and association, international law protects rights to participate in public affairs and to vote in free and fair elections.

Women's rights
Women's rights to equality and to non-discrimination in the enjoyment of human rights are protected. There are also strong prohibitions on gender-specific forms of harassment, violence, and exploitation.

Workers' rights
International law protects workers' rights to associate, organize and bargain collectively, and have a safe and healthy work environment. It also provides guarantees for a living wage and reasonable working hours.

Economic and social rights
International law guarantees the right to education, to work, to the highest attainable standard of physical and mental health, and to an adequate standard of living, including food and housing.

Right to a clean and healthy environment
This right is protected especially in situations where environmental hazards harm other rights, including to life, health, or privacy.

Children's rights
In addition to the general protection of human rights law, children enjoy particular rights, including the right to have decisions made in their best interests.

Access to information
This includes the right to receive information held by public or private bodies where key public interests are at stake or where it is essential to protect other human rights.

Rights of special groups
International law protects the rights of indigenous peoples, linguistic, religious and racial minorities, the disabled, and the elderly. It prohibits discrimination and exploitation of such groups.

Right to justice
This includes the right to redress for victims of human rights abuses, punishment for perpetrators, and access to courts and other procedures.

International law prohibits discrimination
This includes prohibition on grounds including race, color, sex, language, religion, political opinion, national or social origin, birth, or other status.

Source: "Duties Sans Frontières: Human Rights and Global Social Justice" (International Council on Human Rights Policy, 2003)

Human Rights as a Tool for Reframing the Debate

Another important principle to bear in mind is that human rights are indivisible — in other words, political and civil rights cannot be separated from economic, social, and cultural rights (see sidebar for definitions).This is a particularly important concept for migrants, bearing in mind that they often encounter difficulties in their destination countries in accessing health care, education for their children, and other social and economic rights, due in large part to their lack of status or documentation.

Human rights can help migrants reengage with the core issues, rather than stalling on the question of legal status.

Human Rights as a Tool for Accountability

A right is without meaning if it does not create a parallel set of "duties." These duties are vested in a duty bearer, often the state in which the migrant is present (although there is increasing recognition that non-state actors, such as businesses, can also violate human rights.)

While human rights are premised on the notion that the most effective remedies are provided at a national level, where these are unavailable or ineffective, human rights can sometimes be asserted before a regional or international body. Human rights instruments and their supervisory bodies have spelled out, often in great detail, the content of rights and the nature of the obligations that they impose.

Human Rights as a Tool for Effective Policymaking

A vision that only focuses on the use of human rights as a "stick" for states is likely to be profoundly limited in its success. Human rights have the potential to serve as an important element in the tool box of any migration policymaker.

Human rights, after all, are a legal framework developed by states themselves to ensure that all human beings, and in particular their own nationals, are treated with a certain standard wherever they may find themselves. As such, they are a tool to ensure predictability as well as equity, and may help diffuse the tensions that arise between states around the movement of people.

Beyond that, human rights provide a unique framework agreed by states, through which to mediate the competing interests of sending and receiving states, communities, and the individuals caught up in the process of migration.

For instance, human rights can enhance policymaking by deepening an analysis of the causes of migration — its links with inequitable patterns of global trade; the role of economic policies that increase poverty and undermine economic and social rights; the effects of corrupt and abusive government; war; and environmental and economic decline.

Another, important area where international human rights law can make a contribution is the issue of migration and security. The human rights framework is a pragmatic one because it recognizes that, in certain instances, states may restrict some rights, such as the right to freedom of movement, in the interests of national security.

However, human rights law lays down a principled basis on which states should proceed. First, there must be a legitimate and objectively verifiable public interest that the state is seeking to protect. Second, any restrictions must be based in law and be strictly limited and proportionate to the harm that is feared. These restrictions must not infringe on the enjoyment of other human rights. Particularly important to migrants in this respect is the right to equal treatment and non-discrimination.

Finally, there are certain rights that are so fundamental that they can never be restricted or derogated from. These include the right to life and the right to be free from cruel, inhumane, and degrading treatment.

Conclusion

The language of human rights, not to mention the view and perspectives of migrants, have been largely absent from the migration policymaking arena to date. Much more work is needed to inject human rights and the migrants' voice into the mainstream of policymaking in this area.

Human rights can never answer all of the questions that arise with respect to migration. However they are a framework, agreed to by states themselves, that can help promote a principled, constructive, and ultimately more effective approach to migration policy.