Berta Fernández Alfaro, Program Officer, IOM OAS, Washington, DC - 6 March 2008 INTERNATIONAL CONTEXT OF MIGRATION: THE LEGAL AND NORMATIVE FRAMEWORK

Legal and normative framework of international migration Main challenges in the architecture of international migration law Final conclusions Contents

THE NATURAL STATE OF MIND IN MOST RECEIVING COUNTRIES

Legal and normative framework on international migration (1/6) Progress done (common understandings), but still different opinions among States continue (causes/consequences, liberalize or restrict flows) Contrast with consensus around movements of goods, capital and services (GATS) Consensus that well-regulated framework for managing intl. migration is in best interest of States and migrants

No inherent conflict between policies that protect State interests and Migrants rights Sustainability of intl. migration laws and policies depends on: Legal channels for migration Protection of rights of migrants & families Prevention/prosecution smuggling & trafficking Return, readmission and reintegration of persons

Binding international law and non-legally binding best practices and principles International law regulates: States powers and responsibilities to manage movements of people across borders Migrants rights and responsibilities, and State cooperation in managing international movements of people. Gaps: migration for family and economic reasons

International Migration Law (IML) No « world-wide legislature » Developed over time Compiled from branches of international law & applied to migration issues Different instruments apply depending upon context

Primary sources of IML Human Rights law – applies to all human beings, including migrants Migrant workers law – ILO Conventions International Criminal Law Refugee law – applies to persons seeking asylum Humanitarian law – applies to migrants as persons on conflict situation, and prohibitions on forced displacement

Other sources Vienna Convention on Consular Relations GATS – Mode 4 Regional norms – ECHR, ECS, Free movement (EU, CSME, Mercosur) Customary international law (right of citizens to leave and return) Principles – IDPs, Labor migration National incorporation of international norms Cooperation/state-based processes UN Special Rapporteur on the human rights of migrants

International Bill of Human Rights: UDHR – Universal Decl. of Human Rights ICCPR – Civil and Political Rights ICESCR – Econ., Social, & Cultural Rights Core International Human Rights Instruments: ICERD – Elimination of racial discrimination CEDAW – Discrimination against women CAT – Torture, & other cruel/degrading treatment CRC – Rights of the Child ICPMW – Migrant workers and families

Takes the fundamental civil and political human rights and puts them into a binding instrument Requires State to ensure rights to all individuals within its territory and subject to its jurisdiction Derogation permitted in times of public emergency – includes distinction between nationals and non-nationals. Broad non-discrimination clause so derogation not permitted based on race, colour, language, sex, or social origin.

Guarantees right to Work Free choice of employment and just and favorable working conditions, Form and join trade unions Social security (social insurance) Highest attainable standard of physical and mental health Education (compulsory and free at primary level) Take part in cultural life Limits the rights of non-nationals by allowing developing countries to determine to what extent they provide economic rights to migrants

Condemns… any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin…. Differential treatment may be allowed between nationals and non-nationals, but not discrimination. Discrimination connotes distinctions which are unfair, unjustifiable or arbitrary

Includes a number of provisions applicable to migrant women: Elimination of sex role stereotyping Suppression of trafficking in women and exploitation of prostitutes End of discrimination in employment and citizenship Eliminate gender discrimination in rural areas (to avoid migration) States should commit to upholding rights of all women, including migrant women

Sets standards of treatment for all children under age 18 Virtually every aspect of a childs life is covered – including rights to health, education, family, adequate standard of living, etc. Whatever benefits a State gives to the children who are its citizens it must give to all children Obliges States to act in the best interest of the child

Migrant Workers cartoon 3 - catalog reference mmon254

1951 Convention and 1967 Protocol on Status of Refugees (UNHCR) 2000 Convention on Transnational Organized Crime and Protocols on trafficking and smuggling (UNODC) 1990 International Convention on Protection of Rights of All Migrant Workers and Members of Their Families (OHCHR)

Builds on ILO Conventions and core HR instruments Reaffirms basic HR norms for a group of people in vulnerable and unprotected position (irregular/undocumented migrants, trafficking victims) Significant move of international community toward recognition and promotion of migrants rights, in light of numbers of irregular migrants and increased discrimination faced by migrant workers

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Protects the basic human rights of all migrant workers and their families (lawfully resident and irregular / illegal migrants) on the basis of equality with nationals (Part III). Grants regular migrants a number of additional rights on the basis of equality with nationals (Part IV). Prevent and eliminate illegal entry and employment of migrant workers. Imposition of sanctions against persons who organize irregular movements and against employers of undocumented workers (Part VI).

Practical obstacles – MWC is extensive and complex: technical questions and financial obligations on State parties low levels of migration – no point in signing Political obstacles: basic questions about State sovereignty (capacity to deter irregular migration) granting social and economic rights to irregular migrants might act as pull factor

Trade –off: providing rights equivalent to nationals (with financial obligations) may severely limit number of admitted migrants Public backlash against migrants - perceived as being Costly to taxpayers Competitors for limited jobs and resources No need to ratify – protection provided by other HR instruments or national laws States more willing to ratify, if Well-organized constituency in support of migrant rights They believe they are able to effectively control who and how many They have a large diaspora abroad that could benefit from it Limited ratification of MWC (2/2)

The Berne Initiative (States-driven) Intl. Agenda for Migration Management Benefits of legal avenues and integration Reduce irregular migration, racism and xenophobia The Hague Process (NGOs-driven) Coherent migration programs serve to clarify rights and obligations of migrants, strengthen public confidence, and reduce costs of unauthorized migration

Migrant cartoon 4 - catalog reference mmon173 Towards a global governance of migration?

World Migration Organization? International regime to facilitate orderly movement of persons International or Regional processes Global Commission on International Migration – normative framework UN High Level Dialogue on Migration, and Global Forum on Migration and Development

Unlikely that states will enter into any hard legal commitments at the intl. level at any point in the future. Bottom-up approaches: States would put on the table their specific interests and then see if mutually advantageous bargains are possible

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