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

1. The human rights of migrants: principles, practices, approaches, and challenges Pia Oberoi Migration Advisor, Office of the High Commissioner for Human Rights

2. Structure • What are somechallenges and opportunities of recentdevelopments in the region? • What are the humanrights of migrants? • Whatis the humanrights-basedapproachto migration? • What are somerecommendations for the High-level Dialogue?

3. 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 Office of the High Commissioner for Human Rights

4. OHCHR thematic strategy on migration focus areas • Opposing the criminalization of irregular migrants • Combating discrimination, racism, xenophobia, and related intolerance against migrants • Protecting the economic, social and cultural rights of migrants • Advocating for access to safeguards in the context of immigration detention and to alternatives to the detention of migrants • Protecting human rights in the context of mixed migration

5. 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)

6. 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

7. 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 voluntarilyassumedhumanrights obligations • Rights establish a parallel set of duties and accountability frameworks • Each right has a specific focus and content

8. 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

9. Categories and human rights protection • General instruments speak to the rights of «everyone», with few and narrowlydefined exceptions. • More specifichumanrightstreatiesprotecttheirsubjectsaccording to particularcharacteristics: women, children, migrant workers, personswithdisabilities. • Also relevant are instruments thatprotectrefugeesand statelesspersons, victims of trafficking, smuggled migrants … The risks of excessive categorisation > fragmentation, protection gaps

10. Universal Declaration of Human Rights (1948) All humanbeings Everyone

11. 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

12. 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)) *

13. 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

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

15. Concrete strategies for human rights-based migration policy-making • Addressdirectandindirect discrimination (e.g. birth certificates for school enrollment) • Immigration detentiononly as last resort; explore alternatives to detention (reportingrequirements, community-based) • Set up firewalls; e.g. immigration enforcementshould not take place in or nearschools, hospitals • Ensurethat migrant children have sameaccess to healthcare as national children • Ensurethathomeless migrants are able to accessappropriateshelters • Strengthenlawenforcementresponses to xenophobic violence • Facilitate migrants’ access to justice at national and local levels

17. 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.

18. 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

19. Recommendations • Migrants are not commodities; the dialogue shouldbepremised on a humanrights-basedapproach to migration. • All migrants have all humanrights; the dialogue shouldbeholistic and comprehensive. • Nothing about us without us; the dialogue should focus on participation, empowerment and developing inclusive and accountablepartnerships. • Humanrightsshouldbe cross-cutting AND specific

20. For more information www.ohchr.org (Follow the links from the home page: Your human rights - Human rights issues – Migration – Migration and human rights)