International Protection: The International legal framework International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families TAIEX Workshop on Protecting Migrant Workers' Rights and Encouraging Integration Baku May 2016

Migration is an important economic and social phenomenon, a “mega-trend”, as well as a fundamentally human process involving the often precarious movement of 214 million people. - migrants as well as to migration. particular attention to vulnerability and marginalization on the basis of legal status, i.e. to irregular migrants. - children first and foremost. pay attention to the human rights situation at international borders

Migrants are not commodities; the dialogue should be premised on a human rights-based approach to migration. All migrants have all human rights; the dialogue should be holistic and comprehensive. Nothing about us without us; the dialogue should focus on participation, empowerment and developing inclusive and accountable partnerships

Migration and the human rights framework Human Rights are a political means of recognising human dignity in a legally binding way Creation of a private sphere for every human being which is to be protected agains undue interference from the State Human rights are intimately connected with every step of the migration process All human beings have all human rights; the framework focuses on the individual States have voluntarily assumed human rights obligations Rights establish a parallel set of duties and accountability frameworks Each right has a specific focus and content

Universal Declaration of Human Rights 1948 International Covenant on Economic, Social and Cultural Rights 1966 International Covenant on Civil and Political Rights 1966 International Convention on the Elimination of Racial Discrimination 1965 Convention on the Elimination of Discrimination Against Women 1979 Convention Against Torture 1974 Convention on the Rights of the Child 1989 International Convention on the Protection of All Migrant Workers and Members of their Families 1990 International Convention for the Protection of All Persons from Forced Disappearances 2006 Convention on the Rights of Persons with Disabilities 2006

European Convention on Human Rights 1950 European Social Charter 1960 and Revised Charter 1996 American Convention on Human Rights 1969 African Charter on Human and Peoples’ Rights 1981 Specific regional instruments e.g. European Convention on the Legal Status of Migrant Workers 1977 ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers 2007

ILO Constitution espouses principles of social justice protecting persons in their working environment including those “in a country other than their own” International labour law comprises numerous Conventions and Recommendations ILO Conventions No. 97 (1949) and No. 143 (1975) specfically protect migrant workers ILO Declaration on Fundamental Principles and Rights at Work 1998 Member States must adhere to principles in the 8 core ILO Conventions (against forced labour and eliminating child labour, on trade union rights, and non- discrimination) even when they have not ratified the instrument/s in question ILO Conventions No. 97 (1949) and No. 143 (1975) specfically protect migrant workers ILO Declaration on Fundamental Principles and Rights at Work 1998

Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family (Preamble) All human beings are born free and equal in dignity and rights (Article 1) Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind (Article 2) Universal Declaration of Human Rights (1948 )

Sound migration policy involves much more than merely “fighting” unauthorized migration and tightening border controls. Policies of criminalisation and exclusion are unlikely to be an effective deterrent to irregular migration The rights of migrants will remain vulnerable to abuse unless they enjoy protection under the law and are able to demand accountability. Only when conceived in terms of human rights will migration be able to fulfil its potential as an enabler of human development.

Right to life Prohibition of genocide Prohibition of slavery / slave trade Prohibition of torture Prohibition against arbitrary detention Prohibition against racial discrimination Right to self-determination Right to humane treatment as a detainee Prohibition against retroactive penal measures Right to equality before the law Right to leave any country and return to one’s own country Principle of non-refoulement Right to freedom of thought and religion

Discrimination constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal human rights. The international bill of human rights allows only a few limited exceptions to the principle of equality between national and non- nationals, and between different groups of non-nationals Political rights explicitly guaranteed to citizens (ICCPR art. 25) * Freedom of movement and protections on expulsion only to persons lawfully present in the territory (ICCPR art. 12(1), 13) * Limitation in respect of economic rights to developing countries (ICESCR art 2(3)) *

In terms of international law, the obligation “to respect” requires States “to refrain from any actions which would violate any of the rights under a Convention. The obligations to protect and ensure goes well beyond that of to respect, since it implies an affirmative obligation on the part of the State to take whatever measures are necessary to enable individuals to enjoy and exercise the relevant rights, including protection form third parties.

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families 1990

Approximately 175 million international migrants United Nations Population Division, 2000 Approximately 2.0 % of the world’s population, or one in every 35 persons are international migrants International Organization for Migration, 2003

UN Commission on Human Rights Special Rapporteur on the human rights of migrants Special Rapporteur on trafficking in persons, especially on women and children

The International Convention on the Protection of the Rights of All Migrant Workers and members of Their Families December 1990, The Convention entered into force on 1 July 2003 As of May 2015, the following 48 states have ratified the Convention

Comprehensive instrument applicable to the whole migration process and regulating the legal status of migrant workers and their families Sets standards that are applicable in individual States Parties Reflects existing principles established by previous human rights instruments features Protects the basic rights of all migrant workers and their families (lawfully resident and irregular migrants) on the basis of equality with nationals (Part III) Grants lawfully resident migrants a number of additional rights on the basis of equality with nationals (Part IV)

STRUCTURE Part I – Scope and definitions Part II – Non-discrimination with respect to rights Part III – Human rights of all migrant workers Part IV – Other rights of regular migrants Part V – Rights of particular categories of migrant workers Part VI – State cooperation/ obligations in promoting sound, equitable, humane and lawful migration conditions Part VII – Application of Convention Part VIII – General Provisions Part IX – Final Provisions

Defines the rights of migrant workers before departure, in transit, and in the country of employment Establishes obligations for countries of origin, transit, and employment “Migrant Worker”“ 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” Article 2.1

Documented (art.5) or in a regular situation if they are authorized to enter, to stay and to engage in a remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which that State is a party; Without documents, or in an irregular situation if they do not comply with the conditions provided for in subparagraph (a) of the present article

Rights -Right to life (Art. 9) Equal access to social and health services – Art 43(1)(e) -Prohibition of torture or cruel, inhuman or degrading treatment (Art. 10) -Prohibition of slavery (Art. 11) -Freedom of thought, conscience & religion (Art. 12) - Equal access with nationals to housing – Art 43(1)(d) -Family reunification – Art 44

Rights -Access to employment – Arts 52, 53 -Respect for cultural identity – Art 31 -Freedom of opinion & expression (Art. 13) -Right to liberty and security of person (Art. 16) -Protection from the destruction of IDs and other documents (Art. 21) -Prohibition of collective expulsion (Art. 22) -Right to participate in trade unions (Art. 26) -Right to receive urgent medical care (Art. 28) -Right of child to a name, to registration of birth, to a nationality, and access to education (Art. 29, 30)

Key points -Universal human rights instruments apply to all persons irrespective of nationality and legal status: e.g. UDHR, ICCPR, ICESCR -ICESCR applies to non-nationals, including irregular migrants -see ESC Committee General Comments and practice -Interdependence between ESC and CP rights -Distinctions between citizens and non-citizens can only be justified if they serve a legitimate State objective and are proportional to the achievement of that objective - Specific standards relating to economic and rights of migrants are less widely accepted - Legal and practical obstacles in accessing these rights, particularly for irregular migrants

-Pertinent rights -Fair work and employment conditions; health care; housing; social security; education -Legal and practical obstacles to enjoyment of these rights include -Fear of expulsion -Criminalisation of assistance to irregular migrants -Existence of official duties to denounce their presence -Limited trade union support -No access to labour courts /no legal aid provision

-UDHR Art. 23, right to work, right to equal remuneration for equal work, and just and favourable remuneration; Art. 24 rest an leisure, limitation of working hours and annual holiday -Art. 6 and 7 ICESCR– the right to work and the right to enjoy just and favourable conditions of work -Part 1 of European social charter: everyone shall have the right to earn their living in an occupation freely entered upon, all workers shall have the right to safe and healthy work conditions, just conditions of work and to a fair remuneration sufficient for a decent standard of living for themselves and their families

-IHRL protects all persons regardless of nationality or legal status -But elaboration of this principle in more detailed instruments not widely accepted -Violations of migrants’ human rights continue (not the case only for migrants’ human rights) -Legal and practical problems in accessing economic and social rights

-Right to form associations and trade unions (Art. 40) -Right to participate in public affairs and elections of their state of origin (Art. 41) -Protection of the unity of the families of migrant workers (Art. 44)

States Parties undertake, in accordance with the international instruments concerning human rights, To respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction of any kind… Art. 7 Ensure that migrant workers whose rights have been violated shall have an effective remedy Art.83 Adopt the necessary measures to implement the provisions of the Convention Art.84 Submit regular reports to the Committee on Migrant Workers (CMW) on how the rights are being implemented Art.73

European Convention on Human Rights 1950 Article 8 – right to respect for family and private life Article 14 – non-discrimination (including nationality) European Social Charter 1961/ Revised Charter 1996/ Collective Complaints Protocol 1995 FIDH v. France (2005) European Convention on the Legal Status of Migrant Workers 1977 Only applicable to lawfully resident migrant workers from other Contracting parties Equal treatment with nationals in defined areas

Protocol No 12 to ECHR (2000) Art 1 (General prohibition of discrimination) 1.The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.