States and Migrants

1. Competences and Responsibilities of States vs. Right to Leave and ReturnOAS/IOM introductory course on the human rights of migrants, including migrant workers and their familiesWashington DC - March 6, 2008Katarina TomolovaInternational Migration Law and Legal Affairs Department, IOM Geneva

2. States and Migrants States’ sovereignty vs. Human Rights of Migrants State has the power to determine: • Nationality • Admission • Residence • Detention • Removal / Expulsion of non-nationals • Security / Border control measures Fundamental principles: • Power to manage migration must be exercised in full respect of fundamental HR • Power to manage migration must be exercised in full respect of international commitments

3. State sovereignty Sovereignty as a concept of international law has three major aspects: external, internal and territorial. The external aspect of sovereignty is the right of the State freely to determine its relations with other States or other entities without the restraint or control of another State. This aspect of sovereignty is also known as independence. The internal aspect of sovereignty is the State’s exclusive right or competence to determine the character of its own institutions, to enact laws of its own choice and ensure their respect. The territorial aspect of sovereignty is the exclusive authority which a State exercises over all persons and things found on, under or above its territory. IML Glossary on Migration

4. STATE OBLIGATIONS TO NON NATIONALS • HR are inalienable - not absolute • Derogation in times of emergency (Art 4. ICCPR) • HR instruments distinction between national and non nationals, regular & irregular migrants Citizens Regular migrants Irregular migrants

5. Rights that cannot be derogated • 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 • Principle of non-refoulement • Right to freedom of thought and religion

6. States’ Competences State has the power to determine: • Nationality • Admission of non-nationals • Residence • Detention • Expulsion of non-nationals

7. Nationality • Nationality is a juridical and political link that unites an individual with the state • It is for each state to determine under its own laws who are its nationals (1930 Hague Convention) • Contracting states shall as far as possible facilitate the assimilation and naturalization of refugees (1951 Geneva Convention) • Convention on the Reduction of Statelessness required bestowal of citizenship under certain conditions when the person would otherwise be left stateless. • Each Contracting State agrees that the alien wife of one of its nationals may, at her request, acquire the nationality of her husband through specially privileged naturalization procedures (Convention on the Nationality of Married Women) • Naturalization largely depend on domestic law

8. Right to admit - A migrant has the right to leave own country - No international obligation on a State admit a non national - Categories of persons able to assert right of return limited to citizens (No one shall be arbitrarily deprived of the right to enter his own country, art 12, sec. 4 ICCPR)

9. Residence • Conditions of sojourn largely depend of the domestic law of each State. • Human rights standards protect aliens Each State Party to the presents Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (ICCPR, Art 2) • Amount of rights depends on the status of foreigner • Economic rights of aliens are, however, less firmly established than other human rights

10. Detention • Criminal Detention • Punitive in nature or • Aiming at prevention (e.g.: prevent suspect from committing a crime or re-offending, etc.) • Administrative Detention • often under the immigration laws • in practice fewer guarantees and safeguards against violations

11. Detention (“hard” law) • UDHR • right to life, liberty and security of person (Art 3) • prohibition against arbitrary detention (Art 9) • Art 9 ICCPR (right to liberty) principles • arbitrary detention prohibited • detention only on grounds and in accordance with procedures established by law • right to take proceedings before the court so that lawfulness of detention can be determined • enforceable right to compensation if detention unlawful

12. Detention (“hard” law) • Art 16 MWC (extensive procedural rights) • arbitrary detention prohibited • detention only on grounds and in accordance with procedures established by law • consular authorities of State or origin, if migrant so requests, to be informed without delay • right to prompt communication with the authorities • right to take proceedings before the court so that lawfulness of detention can be determined • enforceable right to compensation if detention unlawful

13. Detention and Juvenile Justice Art 37 CRC: States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age; (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances; (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

14. Detention (“soft” law) • Working Group on Arbitrary Detention Deliberation No. 5 on situation regarding immigrants and asylum-seekers, CHR 56th session, E/CN.4/2000/4 (28 Dec 1999) • Standard Minimum Rules for the Treatment of Prisoners (adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders) • Basic Principles for the Treatment of Prisoners (G.A. res. 45/111) • Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (G.A. res. 43/173) • Report of the Special Rapporteur on the human rights of migrants, CHR, 59th Session, E/CN.4/2003/85 (30 Dec 2002) • includes a section on “the human rights of migrants deprived of their liberty” and recommendations

15. Right to remove An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. (Art. 13 ICCPR)

16. Right to remove • State has a right to remove a migrant from the territory • Limited by • Principle of non-refoulement • “best interests of the child” • Procedural limitations under international law (Art. 13 ICCPR) • Measures against collective expulsion (Art. 22 MWC)

17. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Art. 33, Convention for the Protection of Refugees, 1951 No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture Art. 3 (1), Convention against Torture, 1984 Non-refoulement principle

18. Expulsion of migrant workers • Prohibition of measures of collective expulsion • Expulsion allowed only in pursuance of a decision taken by the competent authority and in accordance with law • Decision on expulsion must be communicated with the migrant workers in the language they understand • Right of migrant workers to submit reasons for the review of the expulsion decision • Right to seek compensation in case of annulation of an already executed expulsion decision • Right to settle claims for and receive any wages and other entitlements despite the performance of expulsion • Art. 22 Migrant Workers Convention

19. National Security • Power of state to defend its security - central feature of state sovereignty • hence, power to derogate • Migration procedures are becoming tools for combating terrorism

20. Right to leave and right to return 1. Everyone has the right to freedom of movement and residence within the border of each State. 2. Everyone has the right to leave any country, including his own, and to return to his country. art. 13 UDHR

21. Right to leave • Fundamental right? • Applies to nationals and aliens • No distinction based on regular/irregular departure/entry • Covers any form of travel (temporary, long-term); purpose is irrelevant • No right of entry (except return to own State) • Right not absolute • Duty of abstention imposed State, but also positive obligation to deliver travel documents

22. Right to leave: restrictions • provided by law • necessary to protect national security • e.g. art. 35, IV Geneva Convention of 1949 (Right to leave the territory unless the departure is contrary to the national interests of the State.) (see also articles 48 and 49, same Convention) • e.g. art. 17 First Additional Protocol of 1977 “2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.” • members of armed forces, holders of State secrets • protection of public order (payment of fines and taxes, military obligations) • public health (contagious diseases) • protection of rights and freedoms of others (alimony)

23. Right to choose residence • 3rd component of free movement of persons • Applicable to “everyone lawfully within the territory” • Applicable to “irregular” migrants having been regularized. • Not absolute: restrictions based on State security.

24. Right to return • right to enter for first time (jus sanguinis) • “his own country”: only “national state” or also “state of permanent residence”? • “arbitrary” deprivation: no convincing illustration • not subject to restrictions of 12.3 ICCPR • Individual right vs collective right

25. Specific cases of voluntary return • sick and wounded POWs: art. 109 Third Geneva Convention of 1949 • POWs: art. 118, Third Geneva Convention of 1949 • Civilian population: art. 35 and 49 of Fourth Geneva Convention • Refugees: voluntary repatriation

26. Contemporary issues • Free movement in regional integration processes (NAFTA, MERCOSUR, Andean Community, etc.) • prevention of smuggling • Restriction to right to leave? (See Palermo Protocol, art. 10) • prevention of trafficking • the obligation to return • proof of nationality • Palermo Protocol against Smuggling • MWC • Readmission agreements

27. Concluding observations • Freedom of movement: legal norms reflect political situation of 1950s • State sovereignty in these matters remains largely untouched • Importance of State security • Are restrictions still the exceptions to the principle?

28. Thank you! Katarina Tomolova ktomolova@iom.int