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Migrants' Human Rights: From the Margins to the Mainstream
By Stefanie Grant
Migrants are a particularly vulnerable population, but they have been low — often invisible — on the international human rights agenda. No single institution has a mandate that is comparable to UNHCR's protection role for refugees, and much — perhaps most — national migration policy making takes place outside a human rights framework.
Although this neglect is now being reversed in ways which are reviewed in this paper, the challenge of enforcing human rights at a national level and integrating human rights into international migration governance discussions remains difficult and urgent.
A migrant's human rights are largely defined by the migration "category" to which he or she belongs, and by the reasons underlying that migration. At one end of the human rights/migration spectrum are voluntary migrants, including migrant workers and other economic migrants. At the other end, more than 10 million refugees are forced to leave their countries to escape persecution.
Victims of trafficking occupy an intermediate point on the spectrum. Both they and refugees have special rights protections in international law. In the case of refugees, these protections have become a separate and well-established protection regime.
Voluntary migrants, who constitute most of the world's estimated 185 million migrants, are protected under general principles of international human rights law, and — increasingly — under the UN International Convention on the Protection of the Rights of All Migrant Workers and Their Families (ICMW), which recently entered into force.
Human Rights and Migration: Parallel or Intersecting Issues?
Migration and human rights intersect at a number of points, starting when the migrant crosses a frontier, the act that defines international migration. While international human rights law recognizes the right to leave one's country, there is no corresponding right to enter another country, even for a refugee, without that state's permission.
This means that where a state decides that a migrant entered the country illegally, this decision does not of itself, and if properly taken, conflict with human rights principles. But — more importantly — the fact that a migrant entered or remained illegally does not nullify the state's duty under international law to protect his or her basic rights without discrimination, for example against torture, degrading treatment, or forced labor.
Malaysia's recent decision to deport more than 800,000 irregular migrant workers to Indonesia is an exercise of Malaysia's national sovereignty, as is Spain's contrasting move to provide amnesty to just under one million irregular migrants. But the way in which Malaysia plans to implement its decision, under penalty of whipping, raises serious human rights concerns.
This complex interrelationship between migration and human rights is multifaceted, and found at all stages in the migratory cycle: in the country of origin, during transit, and in the country of destination. Some migrants, usually skilled workers who move to take up professional jobs in the formal sector, may have relatively few human rights problems.
Unskilled workers, who form the majority of migrants, are more vulnerable to rights violations, particularly when they work in the informal sector as domestic workers, for example. In the case of those who have been trafficked and exploited, or who are smuggled, this vulnerability is acute.
At the first stage in the cycle, the "push factors" which trigger migration may include violations of economic and social rights to health care, education, and adequate housing. Violations of civil and political rights, including during civil conflict, that fall below the persecution "threshold" needed for a successful asylum claim also fuel much migration.
Research into the reasons why some women are at greater risk of trafficking has shown that illiteracy, sex discrimination enshrined in law and practice, violence against women and girls, and low economic status of women and girls all result in a heightened vulnerability.
Explanations of migration — to find work, to secure a better livelihood — which look primarily to the future have tended to obscure this important analysis. More research that starts from a human rights perspective is needed. This approach would identify the "push" factors and examine the degree to which different flows of economic migration are, in fact, voluntary.
Once outside his or her home country, a migrant's vulnerability is the result of a number of factors. As strangers to a society, migrants may be unfamiliar with the national language, laws, and practice, and so less able than others to know and assert their rights.
They may face discrimination, unequal treatment, and unequal opportunities at work; in some countries — more than half according to a recent International Labor Organization (ILO) survey — national discrimination law does not apply to migrant workers. In any case, migrants are more likely to work in sectors where labor standards are not applied or not applicable.
Racism and xenophobia are particular problems, especially in many European countries. At times of political tension, migrants may be the first to be suspected — or scapegoated — as security risks. By linking anti-terrorism measures and immigration control in the context of the "war on terror," many governments have encouraged — however unintentionally — xenophobia against migrants and refugees.
Where a migrant enters another country illegally, or enters legally and subsequently loses any legal status, vulnerability to abuse and exploitation increases. Irregular migrant workers "easily fall prey" — in the words of the ILO — to abuse and exploitation by employers, migration agents, and criminal gangs.
Women in an irregular status are doubly vulnerable because of their status and the high risk of sexual exploitation. Spain's plan to legalize irregular migrants, who are estimated to make up as much as six percent of the national labor force, is intended, in large part, to end their exploitation.
The Issue of Invisibility
While international human rights law recognizes the right to leave one's country,
there is no corresponding right to enter another country without that state's permission.
Despite the incidence of abuse, migrants' rights have remained on the margins of the international human rights agenda for several reasons. These include a lack of data; gaps between different institutional mandates; parallel systems for protecting employment rights and human rights; relatively little reporting by human rights NGOs; the dominance of refugee protection in the migration field; and the fact that, until the ICMW was drafted, human rights law only made explicit reference to migrants — as non-nationals — in the context of free movement.
Lack of information has been an obstacle to policy making — about types of violation, where they occur, and their incidence and characteristics. Violations have been generally underrecorded, particularly in the case of migrant women and of forced or exploitative labor that takes place in the illicit underground economy. As a result, it tends to escape national statistics.
Media and governmental reports on rights violations over the course of the migratory process are increasing, but it is not clear whether this reflects increased levels or increased exposure. NGO reporting on migrants' rights is also increasing, but it still remains modest in comparison with reporting on refugees.
At the international level, migrants have tended to fall between the mandates of different organizations. UNHCR and the ILO protect — respectively — the rights of refugees and stateless persons, and the labor rights of migrant workers. But rights protection is not a part of the International Organization of Migration's (IOM) general mandate. Even the UN Human Rights Commission gave relatively little attention to migrants until the late 1990s.
Perhaps taking their cue from Geneva, Amnesty International and other international human rights NGOs have placed greater emphasis on refugee protection than on migrants' rights.
In many industrialized countries, economic recession in the 1970s led to restrictive immigration policies. Using carrier sanctions, tight border controls, and strict visa regimes, European countries enforced policies to prevent or even end entry for employment. These measures also had the effect of restricting the arrival of refugees.
Since refugee flight is a response to persecution at home, and persecution typically involves violations of civil and political rights rather than social and economic rights, refugees have been encompassed relatively easily by the civil and political rights focus of human rights groups.
During the 1970s and 1980s, refugees increased in number and moved to the center of the human rights agenda. But migrants whose numbers have also increased, but who, unlike refugees, are assumed to move voluntarily and to rely on their home countries for consular protection, remained at the edges of human rights concerns.
The resulting invisibility of migrants in human rights discussion was reinforced by the way in which human rights law was written: the core treaties were drafted as rules of universal application which do not name migrants as a specific group or make explicit provision for the protection of non-citizens except in relation to the right to leave and return to one's own country.
A New Situation
There is now a greater recognition of migrants' rights, which gained momentum as new international laws, new interpretations of existing laws, new data collecting, and new reporting mechanisms have strengthened awareness and created new protection "tools."
During the 1990s, the UN General Assembly adopted the ICMW, which gives explicit protection to migrant workers' rights, regardless of legal status
(see related article). The UN Human Rights Commission identified migrants as a vulnerable group and appointed a Special Rapporteur in 1999. An expert study by the Sub-Commission on the Promotion and Protection of Human Rights charted the protection of non-citizens' rights under international law.
Members of the human rights treaty bodies, the committees which monitor implementation of the core human rights laws, began to apply the treaties to the specific case of migrants, going beyond classic civil rights concerns and including social and economic rights, such as essential health care, education, and adequate housing.
The Palermo Protocols, which were adopted in 2000, require states to prosecute trafficking and migrant smuggling as international crimes, and to protect the rights of trafficking victims (see related article) . At the highest legal level, the International Court of Justice, considering a case of convicted Mexican prisoners on death row in the US, underscored the importance of consular access as a form of human rights protection when it ruled that states must ensure the right of irregular migrants to consular access.
The Inter-American Human Rights System created its own Rapporteurship on migrant workers. These reports, together with those of the UN Special Rapporteur, have documented the failure of restrictive policies to halt irregular migration, and the negative consequences of fortified borders in creating opportunities for trafficking and smuggling, leading to increasingly dangerous journeys and a rise in migrant deaths. They also note the effect of restrictive policies in discouraging circular and temporary migration.
Although human rights treaties do not explicitly refer to migrants, they
nonetheless protect migrants because they are universal in scope.
Few governments have yet ratified the ICMW, despite the fact that it is mostly drawn from the core human rights treaties and ILO standards, and requires states to work together to prevent irregular migration. One obstacle is that while the convention gives greatest protection to regular migrants, it protects the rights of all migrant workers, including irregular migrants, and governments object to its ratification for this reason.
But these objections overlook the fact that migrants' human rights are already protected through the core human rights treaties, which the majority of governments have ratified and agreed to implement nationally. Although these treaties do not explicitly refer to migrants, they nonetheless protect migrants because they are universal in scope.
They recognize the fundamental rights of "everyone," "all persons," and "all individuals" to, for example, due process guarantees in the criminal justice system, and not to be subjected to torture, cruel or inhuman treatment or punishment, or held in slavery. Governments may exercise their national sovereignty to decide who to admit to their territory.
Once that individual has entered the country, the national authorities are responsible for his or her safety. Police and criminal justice systems, for example, have a duty to protect immigrants from assault or robbery in the same way as any citizen, and without discrimination.
This principle of equality was recently underscored in a UK case brought by foreign nationals who had been detained on grounds of national security, and who challenged legislation allowing their indefinite detention without trial, which applied to foreign but not to British nationals.
The House of Lords held that, while the rights of these two groups might differ in an immigration context, international human rights law — in this case the European Convention on Human Rights — does not permit discrimination between citizens and aliens in their rights to liberty.
A Global Issue
The cumulative effect of these developments has been to bring migrants from the margins into the mainstream of human rights law and practice — at least in theory. At the same time, government policymakers are operating in a globalized economy, in which the mobility of resources and jobs has not been accompanied by the free movement of labor. The very logic of globalization, however, encourages workers to cross borders to take employment, and thus works against national restrictions.
Within this complex landscape, there is a pressing need to move beyond the negative approach of a national "numbers game" and create a political space in which migration, including migrants' rights, can be addressed as a global issue.
Managed migration is now on the national and international agenda, as the US policy debate so clearly demonstrates. The Global Commission on International Migration, which was launched in January 2004, is one example of a new, albeit hesitant, willingness to consider multilateral approaches to immigration control. Another is the High-Level UN General Assembly discussion, scheduled for September 2006.
The ICMW is an important starting point for developing this agenda, and optimists argue that states will be willing to ratify it once they recognize that it is not a radical departure from standards that most industrialized countries have already accepted. In the meantime, general human rights law continues to offer a sound basis for rights-based migration policies.
It is also important to recognize the close links between development, migration, and human rights in terms of prevention. There is a need for development policies that address the migration push factors by strengthening rights in areas of high emigration, as is being done in Morocco.
Equally, prevention should become a third element in anti-trafficking policies. This would complement prosecution of traffickers and protection of victims with policies that empower women and girls in their home countries, and reduce their incentives to leave.
Addressing the human rights aspects of migration, including the rights of irregular migrants, will not be an easy task. But breaking the vicious circle in which fear of detection prevents irregular migrants from reporting abuse, which in turn strengthens the hand of traffickers, smugglers, and abusive employers, is at the heart of effective rights protection.
The same resolve shown by governments in combating trafficking is needed to ensure that migration takes place in conditions of dignity, and — in the longer term — can become an informed choice rather than a survival strategy in an economically asymmetric world, which is the situation today for many migrants.
Stefanie Grant is a lawyer in London and a partner in Harrison Grant. She headed the research division of the Office of the UN High Commissioner for Human Rights in Geneva, and was also Amnesty International's Director of Research.
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Bogusz, Barbara, Ryszard Cholewinski, Adam Cygan, and Erika Szyszczak, eds (2004). Irregular Migration and Human Rights: Theoretical, European and International Perspectives. Brill Academic Publishers.
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