IOM International Organization for Migration
OIM Organisation Internationale pour les Migrations
OIM Organización Internacional para las Migraciones
MIGRANTS' RIGHTS AND INTERNATIONAL LAW
BY MR. RICHARD
SEMINAR ON HUMAN RIGHTS AND MIGRANTS
23-24 APRIL 1998
Ladies and gentlemen,
It is a great pleasure and honour for me to have this opportunity to submit opening remarks on "migrants' rights and international law". This topic is of keen interest and concern to the International Organization for Migration (IOM) which I represent, and of course to ah States gathered here in Washington at the invitation of the Government of the United States in the framework of what is now known as the Puebla Process.
The initiative you take is timely: rightly or wrongly, the situation of migrants' human rights has never been depicted as being so critical. This initiative is laudable because you are addressing it in a multilateral context, at the regional level, in the hope that exchange of experiences will favour a better understanding of the issue and result in positive conclusions. This initiative is probably unique because you have invited non governmental organizations to join us: I trust they will provide a refreshing and constructive contribution to our debates.
You have received in advance of our deliberations a paper submitted by IOM on "Identifying Core Rights of Concern to Migrants" and you may legitimately be worried that my opening remarks will merely be a recital of this document. To inflict this ordeal on you would be tantamount to inhumane treatment and would be highly improper given the theme of our Seminar. My purpose is rather to highlight a few key issues, to present them in a broader historical context, to challenge ah of us by raising uneasy questions, and to propose possible steps for future action.
The legal status of migrants in international law is linked to their condition as aliens. The so-called law of aliens - mostly unwritten - needs to be considered in any attempt at understanding the treatment afforded to migrants.
In Ancient Greece and Rome, a migrant was an alien, a foreigner, a stranger, if not an enemy: aliens (metics) barely had rights; they were legally inferior, being denied basic civil and political rights. While the Middle Ages saw aliens treated sometimes as slaves, the expansion of trade and fairs led to a marked improvement of the condition of aliens, in particular merchants who could obtain redress in case of violations of their privileges. This evolution contributed to the progressive codification of the institution of the diplomatic protection whereby a State may protect its nationals abroad and seek redress as if the harm had been inflicted upon the State itself. The disadvantage of this institution is of course that diplomatic protection can be activated only by the State and is not a right of the individual.
By the end of the last century, aliens - or migrants - were accorded either national treatment or the international mini mum standard of treatment. National treatment was not a panacea, in view of the uneven level of development of countries, and the inadequate treatment accorded by some countries to their nationals. The international minimum standard - articulated by Secretary of State Root in 1920 and subsequently by Borchard in 1940 contains substantive and procedural elements. The former includes "certain elementary privileges of human existence ... mainly rights to life and the elementary liberties connected with the earning of a living", while the latter is defined by "fair courts, readily open to aliens, administering justice honestly, impartially, without bias or political control". This minimum standard, in its substantive dimension at least, is still considered as providing basic rights to non-citizens.
The middle of this century has witnessed the emergence of the body of international human rights norms applicable to ah, hence putting to rest - or freezing - the debate between advocates of the minimum standard and those of the national treatment. The law of aliens is however still of relevance, as many States are not yet party to the human rights instruments and their supervisory mechanisms are consequently not universally applied.
Let us pause here for a short comment: in more than 20 centuries, the alien or migrant has progressed through various steps a status of quasi-enemy, then a tolerated foreigner, then a progressive assimilation to a national, then the minimum standard of international law, and finally, in the early fifties, the applicability of international human rights instruments to aliens and nationals alike.
Today, the legal instruments relating to human rights, and more particularly the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966 and the International Covenant on Economic, Social and Cultural Rights of the same date, have been developed in fulfillment of the idea of adherence to shared standards of justice as a condition for full membership in the modern international society. These conventions, usually referred to as the Bill of Rights, are the starting point of any definition of the rights of migrants.
When analyzing ah the universal and regional human rights instruments, one question is usually raised: what are the fundamental or basic human rights?
It is tempting - and justified up to a certain point - to look at the list of rights and to single out those from which no derogation is permitted, even in time of public emergency which threatens the life of the nation : these include the right to life, freedom from torture and inhuman treatment, freedom from slavery and servitude, non-applicability of retroactive law, right to recognition as a person before the law, and the right to freedom of thought, conscience and religion; these rights constitute the "hard core" of fundamental rights, a kind of jus cogens of human rights.
It goes without saying that any migrant, irrespective of his status, is entitled to the above rights. It would be wrong, however, to conclude that migrants in an irregular situation, because of the irregularity of their status, enjoy only the rights just listed : this would mean that the mere presence of undocumented migrants constitutes in itself a threat to national security and that ah other rights can be suspended.
The other rights which can be found in the Bill of Rights are sometimes applicable to everyone, sometimes only to nationals; when applicable to everyone, including migrants, they may be subject to restrictions or limitations : to take just one example, the principle of non-discrimination would require more than this Seminar to agree (or disagree) on its scope of application.
Human rights are also migrants' rights, but migrants - in particular migrant workers- have special needs which have been recognized and embedded in international conventions over the last 70 years. Economic and social rights of migrants have been developed mainly by the ILO, from 1919 to 1945 in parallel to the development of customary international law relating to aliens and, from 1945 until now, in parallel to the development of human rights.
In its work of promoting and developing standards for migrant workers, the ILO has expressly acknowledged the need for protection of this group who remains exposed to hostility and exploitation. The standard setting activities of the International Labour Organization have produced a variety of Conventions and Recommendations to benefit migrant workers, the most important of which are the Migration for Employment Convention 1949 (no. 97); the Migration for Employment Recommendation 1949 (no. 86); the Migrant Workers Convention 1975 (no. 143); and the Migrant Workers Recommendation 1975 (no. 151). These conventions however have not been ratified by many States.
Basic human rights are the keystone of these instruments as they do not permit any distinction between nationals and non-nationals. For example, the 1975 Convention (no. 143) affirms in Article I that "Each Member for which this Convention is in force undertakes to respect the basic human rights of ah migrant workers." Importantly, the same Convention stipulates that migrant workers shall not be recorded as in an illegal or irregular situation in a host country merely because of loss of employment. In the event of threatened expulsion, the migrant worker must enjoy the right of appeal, which itself should have a suspensive effect, unless considerations of national security or public order dictate otherwise.
These ILO instruments, however, cannot deal with ah the rights. Strictly speaking, the ILO is primarily concerned with the economic and social rights of workers pertaining to questions of labour. Questions concerned with immigration, expulsion, political rights, and rights to education and culture do not fall within the ILO's competence. However, the interdependence of civil and political rights with economic and social rights makes it difficult to separate questions of labour from the broader economic, social, cultural, and political context in which migrant workers and their families find themselves.
The next, and final step in the formulation of migrants' rights at the international level, has thus consisted in incorporating in one single instrument ah the rights of migrants, be they civil, economic, political, social, cultural or labour related. This landmark instrument is the UN Convention on the Protection of the Rights of Ail Migrant Workers and their Families, adopted on 18 December 1990 by the United Nations General Assembly. It explicitly extends the benefit of some of its provisions to ah migrants, including those persons who find themselves in an irregular situation. Migrants in a regular situation are granted additional rights listed in Part IV of the Convention (articles 36 to 56).
Part III of the Convention, in its Articles 8 to 35, recognizes inter alia the following rights to all migrant workers, whatever their legal status may be : right to leave any State, including their State of origin, and to re-enter their State of origin (Article 8); right to life (Article 9); prohibition of torture or cruel, inhuman or degrading treatment (Article 19); prohibition of slavery or servitude, and of forced or compulsory labour (Article 11); freedom of thought, conscience and religion (Article 12); right to hold opinions without interference (Article 13); prohibition of arbitrary or unlawful interference with their privacy, family, home, etc. (Article 14); protection of property (Article 15); liberty and security of the person (Article 16); right to be treated, if deprived of their liberty, with humanity and with respect for the inherent dignity of the human person and for their cultural identity (Article 17); equality with nationals before the courts (Article 18); prohibition of measures of collective expulsion (Article 22); recognition everywhere as a person before the law (Article 24).
These and other rights foreseen in Part III of the Convention will constitute, once the Convention comes into force, a significant development in the protection of ah migrants. Many of them are already now part of customary international law, if not of jus cogens.
I may add that, more recently, many UN conferences have highlighted the need to guarantee the protection of the human rights of migrants : the World Conference on Human Rights (1993), the International Conference on Population and Development and its Cairo Plan of Action (1994), the World Summit for Social Development (1995) and the Beijing World Conference on Women (1995) underlined this issue.
One may wonder why so strong an emphasis is being placed on rights of migrants in an illegal situation : is this not encouraging or rewarding illegal migration? Is this compatible with State sovereignty and the right of any State to control its borders? The principle of State sovereignty is not affected by the recognition of basic rights to any individual within the borders of a given State each State retains the right to establish criteria governing admission, stay and employment of migrants and family members on its territory. What needs to be mentioned however is that every human being has duties towards the country or society in which he lives; as stated in the Universal Declaration, everyone has duties to the community in which alone the free and full development of his personality is possible." The 1990 Convention expresses the same idea in its Article 34 when declaring that nothing shall be interpreted as relieving the migrants and members of the family from the obligation to comply with the laws and regulations of the State of residence.
Coming back to our Seminar and its agenda, 1 note that you have opted for a global and particular approach: particular because you have decided to analyze three rights at risk, global because you will be looking also at ways to safeguard the human rights of migrants and devise future work on human rights and migrants.
This pragmatic approach is to be encouraged. However, I feel duty bound to stress that, in addition to the three specific issues which will be examined, a range of other problems deserve your full attention and should be considered in future meetings protection against expulsion; political rights; acquisition of nationality; family reunification; social security; and employment-related rights.
While these topics cannot be addressed hic et nunc, there are other more distressing phenomena which cannot be omitted and to which 1 must draw your attention. Today, migrants are faced with a number of problems and difficulties which are not likely to disappear. The major problems identified are the following: inadequate capacities of States to establish mechanisms and procedures to protect the human rights of migrants; administrative measures making access to courts difficult; racism, xenophobia and other forms of intolerance; trafficking, in particular of women and children; wages below the established minimum levels; dangerous working conditions; confinement in sub-standard housing; border police violations against migrants, etc.
On the eve of the next millennium, we are faced with a growing contradiction and dilemma. On the one hand, the international community has at its disposal an impressive and sophisticated machinery of treaties, conventions, recommendations defining and protecting the human rights of migrant. On the other hand, migrants are often considered as different, exploitable, outcast if not humiliated; there is ample evidence of discrimination in employment, education and other services. Being of a different culture they can be exposed to racism and racist violence, and treated as scapegoats for the domestic ills of our societies.
As announced in my introduction, 1 wish to submit a number of considerations or observations which could be kept in the back of your mind: as we progress in our deliberations, some of them could inspire possible conclusions or recommendations you may wish to adopt. The following measures could be considered:
1. There seems to be no need for more international instruments at the universal or regional level: existing treaties are sufficient. States should be encouraged to ratify existing instruments.
2. States should ensure that appropriate legislative and administrative measures be taken not only to translate international commitments into national law, but also to ensure compliance with international instruments and address existing gaps in protection.
3. High priority must be given to the dissemination of information on migrants' rights and duties: cooperation with IOS and NGOs is strongly encouraged.
4 Fight against racism, xenophobia and intolerance must be a constant preoccupation of each State.
5. In order to sensitize public officials towards rights and standards in the treatment of migrants, training programmes for government officials should be established or expanded.
6. Efforts should be focused on educational solutions, such as providing guidelines and codes of conduct for officials, along with cultural and language training.
7. Bilateral and regional cooperation is required to ensure adequate treatment of migrants : the setting up of binational commissions on migration is a good example of such cooperation.
8. Governments can benefit from cooperation with international, governmental and non-governmental organizations, which can assist them in formulating policies and guidelines to address the situation of migrants, including specific needs of migrants in an irregular situation and victims of trafficking.
9. Finally, Governments and other participants to this Seminar should meet regularly on this same topic to (a) assess progress made on the three specific rights examined during this session; (b) analyze in detail a number of other individual rights or problems; (c) assess achievements on more general conclusions and recommendations which may be adopted at the end of this Seminar.
IOM is prepared to assist in the implementation of any conclusions or recommendations you may adopt and, at this juncture, I wish to briefly summarize IOM's functions in this field.
Since IOM's establishment in the early fifties, its Constitution has mandated it to ensure the orderly migration of persons to countries where they can live in dignity and self-respect. IOM is working towards respect of human dignity through its actions and programmes.
Recently, IOM Member States reaffirmed IOM's commitment to contribute to the effective respect of migrants rights. On 29 November 1995, the IOM Council adopted a landmark resolution affirming that “IOM, committed to the principle that humane and orderly migration benefits migrants and society, acts to ... work towards effective respect of the human dignity and well-being of migrants."
This renewed and official insistence on IOMs commitment is timely. As already said, today, migration is no longer generally seen as a positive force for social and economic development: as a result, the migrant increasingly serves as a scapegoat and all the ills of which migration is accused are frequently heaped on his head. Appeals are increasing for IOM to assume a more dynamic role, to become an effective intermediary between States to guarantee an orderly, dignified and humane migration process, to provide the link between theory and practice. In other words, IOM is seen as an agent permitting respect for the rights laid down in international instruments and sometimes in danger of remaining a dead letter if not translated into fact. IOM has no legal protection mandate but, through its ~de facto protection role, it can contribute to ensuring the protection of basic human rights of migrants. IOM is not becoming a supervisory or monitoring body of the application of international norms, but it endeavors to promote better synergy between its action and that of other organizations active in this field.
Close cooperation with the NGOs is particularly important, since they are often the most direct link with migrants and are continually attentive to their problems and needs. It is for this reason that the NGOs and IOM have set up a consultative working group not only to exchange information on the concerns and policy of each partner but also to identify possible areas of cooperation, especially with a view to ensuring effective respect of migrants' rights.
When describing the evolution of the situation of migrants, I noted that they were sometimes treated as slaves or quasi-enemies : our responsibility today, our commitment, individually and collectively, is to make sure that we do not return to barbarity. The worst would be to pass on migrants rights the same judgment as the one passed on human rights in a recent publication, namely "for the vast majority of individuals on the planet, human rights remain a fantasy, an utopian dream, aspirations for some long distant future". For us, migrants rights are a reality, a constant concern and 1 am confident that our deliberations will make a constructive contribution to our resolve to ensure effective respect for migrants rights.