Pia Oberoi

The human rights of migrants: principles, practices, approaches, and challenges

Migration Advisor,Office of the High Commissioner for Human Rights

Structure

What are some challenges and opportunities of recent developments in the region?

What are the human rights of

migrants?

What is the human rights-based approach to migration?

What are some recommendations for the High-level Dialogue?

Office of the High Commissioner for Human Rights

Promoting respect for human rights is a core purpose of the United Nations Charter (peace & security, development, human rights)

OHCHR is part of the UN Secretariat Supports standard-setting and

monitoring Conducts research Assists in human rights

implementation through technical assistance

Human rights mainstreaming in the UN system

OHCHR thematic strategy on migration focus areas1. Opposing the criminalization of irregular migrants2. Combating discrimination, racism, xenophobia,

and related intolerance against migrants3. Protecting the economic, social and cultural

rights of migrants4. Advocating for access to safeguards in the

context of immigration detention and to alternatives to the detention of migrants

5. Protecting human rights in the context of mixed migration

An “Arab spring» for migrants? Or business as usual?

The international community should “Support legislative and institutional reforms to ensure effective respect for and protection and fulfilment of the human rights of all migrants, particularly recognising the previous situation of migrants in countries of transit and destination in the region.”

OHCHR, Situation of migrants and asylum-seekers fleeing recent events in North Africa, 2011 (A/HRC/18/54)

Some reflections Positive recent

developments in relation to the human rights of migrants in the region

Opportunities for wider legislative and structural reforms?

But concerns remain …

E.g. Agreement between Saudi Arabia and the Philippines on domestic workers

Regime change based on concerns about dignity, rights and social justice could provide an opportunity for enhanced attention to migrants’ human rights.

Including access to services, labour rights, xenophobia and discrimination, access to justice, detention, situation of irregular migrants, domestic workers

Migration and the human rights framework

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

Core international human rights instruments

• Universal Declaration of Human Rights • International Covenant on Economic, Social and Cultural Rights • International Covenant on Civil and Political Rights* • International Convention on the Elimination of Racial Discrimination • Convention on the Elimination of Discrimination Against Women* • Convention Against Torture*• Convention on the Rights of the Child*• International Convention on the Protection of All Migrant Workers

and Members of their Families• International Convention for the Protection of All Persons from

Forced Disappearances• Convention on the Rights of Persons with Disabilities*

* Some treaties are supplemented by optional protocols dealing with specific concerns

Categories and human rights protection

• General instruments speak to the rights of «everyone», with few and narrowly defined exceptions.

• More specific human rights treaties protect their subjects according to particular characteristics: women, children, migrant workers, persons with disabilities.

• Also relevant are instruments that protect refugees and stateless persons, victims of trafficking, smuggled migrants …

The risks of excessive categorisation > fragmentation, protection gaps

Universal Declaration of Human Rights (1948)

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)

All human beings

Everyone

Non-discrimination

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 footing, of human rights.

ICRMW grounds: sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status

Non-discrimination

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)) *

The human rights based approach …

Constitutes a framework of action, as well as a set of tools for migration policy-makers.

Is based on the international framework of human rights law as provided in the core human rights instruments

Upholds the principle of non-discrimination Establishes accountability between duty-bearers and

rights-holders Focuses on vulnerability, marginalisation and

exclusion Emphasises participation and empowerment

Part VI of the ICRMW: international cooperation to promote humane migration, taking account of «needs» of migrant workers

Concrete strategies for human rights-based migration policy-making

Address direct and indirect discrimination (e.g. birth certificates for school enrollment)

Immigration detention only as last resort; explore alternatives to detention (reporting requirements, community-based)

Set up firewalls; e.g. immigration enforcement should not take place in or near schools, hospitals

Ensure that migrant children have same access to healthcare as national children

Ensure that homeless migrants are able to access appropriate shelters

Strengthen law enforcement responses to xenophobic violence Facilitate migrants’ access to justice at national and local levels

Key messages to States on the human rights of migrants 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.

Some key messages to Round table 2 of the High-Level Dialogue 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. The HLD should pay attention to migrants as well as to migration.

The HLD should pay particular attention to vulnerability and marginalization on the basis of legal status, i.e. to irregular migrants.

Migrant children are children first and foremost. The HLD should pay attention to the human rights

situation at international borders

Recommendations

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.

Human rights should be cross-cutting AND specific

For more information www.ohchr.org

(Follow the links from the home page:Your human rights - Human rights issues – Migration – Migration and human rights)