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

Berta Fernández Alfaro, Program Officer, IOMOAS, 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

ContentsContents

Statistics for the AmericasStatistics for the Americas

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

Legal and normative framework on international migration (2/6)

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

Legal and normative framework on international migration (3/6)

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

Legal and normative framework on international

migration (4/6)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

Legal and normative framework on international

migration (5/6)

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

Legal and normative framework on international migration 6/6

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

Human Rights Human Rights InstrumentsInstruments

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

ICCPRICCPR

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.

ICESCRICESCR

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

CERDCERD 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

CEDAWCEDAW 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

CRCCRC

Sets standards of treatment for all children under age 18

Virtually every aspect of a child’s 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

International Conventions relating International Conventions relating to Movements of people across to Movements of people across

international borders:international borders:(chronological order)(chronological order)

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)

Migrant Workers Convention Migrant Workers Convention (MWC) (1/2)(MWC) (1/2)

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

Migrant cartoon 10 - catalog reference ndi0739

Related topics: migrant, migrants, migrant worker, migrant workers, slave, slaves,

Migrant Workers Convention Migrant Workers Convention (MWC) (2/2)(MWC) (2/2)

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).

Limited ratification of MWC Limited ratification of MWC (1/2)(1/2)

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)Limited ratification of MWC (2/2)

Towards a normative Towards a normative frameworkframework

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 Towards a global governance of governance of

migration?migration?

Towards a global governance of Towards a global governance of migration?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

FINAL CONCLUSIONSFINAL CONCLUSIONS

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”

THANKS THANKS

www.iom.int

Regional Office for North America and the Caribbean

1752 N Str., NW Suite 700Washington, DC 20036